I hear new stories every day about the fines associated with OSHA violations being much higher than they ever were under the Clinton or Bush administration. And, statistics show that the more costly violations classified as Willful, Repeat and Egregious are being cited at a rate of five times higher since Obama became President.
Chances are good that you’ll be inspected by OSHA, so be prepared. The best way to be prepared is to identify and correct safety non-compliance issues before OSHA finds them. Have someone with knowledge of OSHA Standards audit your facility or construction site, and make sure the audit includes both a regulatory compliance review and a safety inspection. The regulatory compliance review will identify deficiencies in your overall safety program, including company culture, written procedures, employee training, self inspections, incident reporting and tracking, and medical surveillance. The safety inspection will include an in-depth visual inspection of your facility or construction site to identify workplace hazards.
When you are inspected by OSHA you may be able to avoid being issued some of the more costly (up to $70,000 per violation) Willful, Repeated and Egregious violations, not to mention mitigating potential civil liability and negative press. Here’s how:
Don’t admit non-compliance – Among the worst things someone can say to an OSHA inspector is that our company did not comply with an OSHA Standard because compliance was “unnecessary to keep our employees safe”. Believe me when I say, there are some people who think that such a statement will help get them off the hook by showing that they were thinking about employee safety. They are wrong. Such a statement is evidence that the company knew they had to comply with an OSHA Standard, and did not. This will most likely result in a Willful or Egregious violation.
The classic case is United States v. Dye Construction Co., 510 F.2d 78 (10th Cir. 1975). A construction superintendent knew that the OSHA Trenching Standard required shoring for the trench involved in his project. However, he decided not to install shoring, and only install shoring if the trench appeared unsafe in his experienced judgment. His violation of the OSHA Standard was held to be criminally willful. The reason, he knew that what he was doing was contrary to OSHA’s Standard. Therefore, a company should ensure that their employees are trained so that if an OSHA violation is found during an inspection, they will not try to invent an excuse that compliance with an OSHA Standard was unnecessary.
Will your employees get you into trouble if they say to and OSHA inspector that compliance with a particular OSHA Standard was “impractical”? Not necessarily, infeasibility is a legitimate defense to an OSHA violation as long as there was a good faith belief that compliance was infeasible. Even if you can’t convince the OSHA inspector that it’s not a violation, they should be convinced it’s not a Willful or Egregious violation. If you clearly fall short of establishing the infeasibility defense, however, the OSHA inspector might doubt your good faith. However, it’s important to note that this defense can be very difficult to establish. Not only must you show compliance is infeasible, you must also show that you implemented alternative safety measures to protect the employee.
Know your OSHA history – You never want to hear “we’ve cited you for this before” from an OSHA inspector. Even if the previous violation had been initially abated, a recurrence of the same or a substantially similar violation can expose a company to penalties for Repeated violations. To avoid Repeat violations, you should conduct periodic safety audits, as mentioned above. Past OSHA violations should be made available to the auditors to ensure that similar deficiencies are identified and addressed.
Don’t make the mistake of thinking that an OSHA violation at one facility or construction site cannot be used to support a Repeat violation at a different facility or construction site owned or operated by the same company, because it can. A good example would be the case where HomeGoods Company was recently cited by OSHA for five Repeat violations and fined $200,000. The Repeat violations were based on citations issued to HomeGoods Company in 2006 and 2007 for similar conditions at two different stores, one in a different state. Therefore, you should either periodically audit all your facilities or construction sites, or the audit findings/corrective actions from one audit should be implemented throughout the company.
Be aware that Repeat violations can also be used as evidence for Willful and Egregious violations.
Don’t ignore employee complaints or incident reports – Another way an OSHA inspector can make the determination that a violation is Willful or Egregious is if there is evidence that the company knew that they were not complying with an OSHA Standard through documented employee complaints and incident reports. Therefore, ensure that you have a procedure in place to evaluate and address any non-compliance issues identified in employee complaints and incident reports. It would also be a good idea to include these issues in your periodic audits.
Consult an experienced safety professional – It certainly would be beneficial to you to consult an experienced safety professional prior to being inspected by OSHA to help strengthen your company’s safety compliance posture. However, if you are inspected and OSHA has issued a citation, you should immediately contact a safety professional with experience in managing, abating, and negotiating OSHA citations. It’s important to note that the citation will not only identify the specific violations, but will also dictate fines and abatement dates. If you wish to negotiate with OSHA on any of these counts, you must submit a request for an Informal Conference within 15 days. In addition, it would also be prudent to submit a request to contest the whole or any part of the citation, in the event an agreement cannot be reached during the Informal Conference.
Total Environmental & Safety, LLC’s mission is “Make complying with environmental and safety regulations an asset, not a burden”. Let us ensure that your prepared for and OSHA inspection, so that you can concentrate on what you do best.