The Occupational Safety and Health Administration is conducting over 50,000 inspections per year of work places covered by the Occupational Safety and Health Act of 1970. Often times an employer will receive citations based on the conditions at their worksite or facility and immediately sign the informal settlement agreement and pay the penalties. Once and employer has acknowledged the violations in this manner they move from alleged violations, to actual violations which in turn can lead to several issues down the road depending on the contractors size and type of work. An example of these long term effects could be loss of reputation, increased fines for repeat violations, loss of competitive advantage and a number of issues that can affect a company negatively. Contractors need to understand the process that the OSHA Act allows and they need to be ready to take advantage of them when the time comes.
The first thing contractors need to understand is the type of violations they can be cited for by OSHA. Each of the following categories have there own characteristics along with their own monetary penalty range.
Types of Violations
Willful: A willful violation is defined as a violation in which the employer knew that a hazardous condition existed but made no reasonable effort to eliminate it and in which the hazardous condition violated a standard, regulation, or the OSH Act. Penalties range from $5,000 to $70,000 per willful violation.
Serious: A serious violation exists when the workplace hazard could cause injury or illness that would most likely result in death or serious physical harm, unless the employer did not know or could not have known of the violation. OSHA may propose a penalty of up to $7,000 for each violation.
Other-Than-Serious: An other-than-serious violation is defined as a situation in which the most serious injury or illness that would be likely to result from a hazardous condition cannot reasonably be predicted to cause death or serious physical harm to exposed employees but does have a direct and immediate relationship to their safety and health. OSHA may impose a penalty of up to $7,000 for each violation.
De Minimis: De minimis violations are violations that have no direct or immediate relationship to safety or health and do not result in citations.
Other: A violation that has a direct relationship to job safety and health, but is not serious in nature, is classified as "other."
Failure to Abate: A failure to abate violation exists when the employer has not corrected a violation for which OSHA has issued a citation and the abatement date has passed or is covered under a settlement agreement. A failure to abate also exists when the employer has not complied with interim measures involved in a long-term abatement within the time given. OSHA may impose a penalty of up to $7,000 per day for each violation.
Repeated: An employer may be cited for a repeated violation if that employer has been cited previously for a substantially similar condition and the citation has become a final order of the Occupational Safety and Health Review Commission. A citation is currently viewed as a repeated violation if it occurs within 5 years either from the date that the earlier citation becomes a final order or from the final abatement date, whichever is later. Repeated violations can bring a civil penalty of up to $70,000 for each violation.
A VIOLATION CAN BE CITED AS REPEATED IF THE EMPLOYER HAS BEEN CITED FOR THE SAME OR A SUBSTANTIALLY SIMILAR VIOLATION ANYWHERE IN THE NATION WITHIN THE PAST 5 YEARS.
Once an employer understands what the citations were for, they need to carefully evaluate if they agree with the proposed penalty/category associated with their alleged violations. Even if the determination is that the penalty is valid, a contractor is recommended to schedule an Informal Conference. Often enough, the proposed penalties assigned fall into a higher risk category then the employer thinks appropriate or the penalty itself has no merit. In these cases and Informal Conference can prove invaluable.
Before we go any further lets review the options for employers during the OSHA process:
As an employer who has been cited, you may take either of the following courses of action:
OSHA will inform the affected employee representatives of the informal conference or contest.
Before deciding on either of these options, you may request an informal conference with the OSHA Area Director to discuss any issues related to the citation and notification of penalty. (See Informal Conference and Settlement.)
Informal Conference and Settlement
Before deciding whether to file a Notice of Intent to Contest, you may request an informal conference with the OSHA Area Director to discuss the citation and notification of penalty. You may use this opportunity to do any of the following:
An informal conference will allow a contractor with the opportunity to meet with OSHA's area director and, if requested, the inspector in an informal setting to discuss the elements of the citation. In this setting it is often an opportunity for the contractor to present its case for reduced severity, reduced penalties, and sometimes outright deletion of cited items. If nothing else, the employer has demonstrated their concern for safety, and willingness to make improvements in their safety culture and program. Which often times is half the battle.
Next quarter we will discuss employer affirmative defense options that contractors can pursue to have items deleted as well as the importance of arguing for reduced severity when it comes to serious or willful violations. If you have any questions regarding this article, or if you would like to speak with someone to help you with the OSHA citation process, please call us at 1-800-641-5990.
Some information in this article was retrieved from the Occupational Safety and Health Administration OSHA. http://www.osha.gov/Publications/osha3000.html