Managing OSHA RISK and Effectively Responding to OSHA Citations—Part 1

A. Introduction
                     
     Enacted in 1970, the Occupational Safety and Health Act (the “Act”) was created “to assure safe and healthful working conditions for working men and women by authorizing enforcement of the standards developed under the Act.”  The Act also created the Occupational Safety and Health Administration (“OSHA”) to enforce the Act’s safety regulations, and the Occupational Safety and Health Review Commission (“OSHRC”), an independent adjudicatory body designated to preside over formal contests between employers and OSHA.

     While many employers are familiar with OSHA’s authority to inspect construction job sites without prior notice and their ability to issue citations for violations of the Act’s regulations, many employers fail to establish the internal procedures necessary to minimize the financial risk posed by OSHA Citations. This article is the first of two articles on OSHA Citations.  This article identifies certain internal procedures that an employer should establish to limit the probability of future citations while simultaneously reducing the severity of OSHA Citations in the event that a Citation is assessed.  Part 2 of this series will describe OSHA’s processes and procedures in the unfortunate circumstance that an employer receives a citation.

B. Proactively Managing OSHA Risk

     To err is human, and the construction industry is certainly not exempt from this maxim.  No matter how extensive an employer’s safety training and monitoring program, an employer can never completely eliminate the risk that an employee will violate OSHA safety regulations while on the jobsite. Fortunately, employers can establish proactive internal safety and recordkeeping procedures that will simultaneously reduce the risk of such violations in the first place, which is of paramount importance, while also reducing the employer’s legal exposure to OSHA in the event that a citation is assessed.  A frequently cited but difficult to establish defense to an OSHA citation is known as “unpreventable employee misconduct.”  The defense of unpreventable employee misconduct is premised upon the idea that the employer could have not have discovered the violative condition with the exercise of reasonable diligence and requires proof of the following four factors:

     1. the employer has established work rules designed to prevent violations such as those alleged in the citation;
     2. the employer has adequately communicated those rules to its employees;
     3. the employer has taken steps to discover such violations; and
     4. the employer has effectively enforced the rules when violations are discovered.

     If an employer follows these guidelines and retains the requisite documentation, the defense of unpreventable employee misconduct can be an effective tool to prevent a citation in the first place or reduce the severity of the fine if an employee is found to have violated an OSHA regulation outside of the presence of a supervisor or officer of the employer.

              I.    Established Work Rules Designed to Prevent Violations

This requirement is fairly straightforward.  Employers should ensure that it has a written safety rules and procedures manual that is specific to the particular industry in which it operates.  Employers should ensure that the manual is kept up-to-date and accurate.  The specific content of an employer’s safety manual is beyond the scope of this article, but there are many resources available to assist in the creation of safety manual for purposes of OSHA compliance—offered both by OSHA itself as well as private entities. Employers should make their written safety rules and procedures available in the languages spoken and understood by their employees.

             II.    Adequate Communication

An employer must utilize multiple avenues of communication to ensure that it has adequately communicated its safety rules to its employees in the eyes of OSHA. The following examples are not intended to serve as an exhaustive list but are oft-cited examples of the elements of adequate communication.

As an initial matter, an employer should immediately provide each newly hired employee with a copy of the safety rules and procedures manual.  An employer should review the safety manual with each employee, instruct the employee on the procedures required therein, and provide the employee an opportunity to demonstrate their proficiency, as well as ask any questions and request clarification of any rules they do not understand.  It is advisable to require employees to sign an acknowledgement that the employee is aware of and understands the employer’s safety and rules manual and agrees to abide by it.

An employer should also communicate its safety rules and methods via other means on a regular and consistent basis. For example, an employer should conduct frequent “toolbox” safety meetings at the jobsite addressing the safety topics germane to the current job.  Less frequent, but more in depth training sessions, either through in-house instruction or a third-party safety management company are also recommended.  A meticulous written record should be maintained of such meetings, including, but not limited to the name of the instructor, the topic of discussion, the date, and signatures of all employees in attendance.  Also recommended are OSHA’s 10-hour and 30-hour safety training courses.  The 10-hour course is recommended for entry-level workers while the 30-hour course is more appropriate for supervisors or workers with safety responsibility.

            III.    Active Discovery of Violations

Whether an employer’s supervision is adequate to discover violations of OSHA regulations is an inherently fact-based determination.  It has been found, however, that “insisting that each employee be under continual supervisor surveillance is a patently unworkable burden on employers.”  Most importantly, the employer should be able to produce documentation supporting its decision to provide its designated level of supervision, as well as evidence that the appropriate level of supervision was indeed carried out.  Ultimately, the employer’s duty is to take reasonably diligent measures to inspect its worksite and discover hazardous conditions; so long as an employer does so, it is not in violation simply because it has not detected or become aware of every instance or hazard.  It is also recommended that the employer’s safety manager and safety director (which for smaller companies might be its president or owner) make regular, unannounced visits to the worksites.  The visits should be supported by written reports of the conditions encountered and any corrective action taken.

          IV.      Effective Enforcement of the Rules 

In order to utilize the unpreventable employee misconduct defense, it is critical that an employer enforce its rules when violations are discovered.  A satisfactory disciplinary program requires progressive discipline, for example, beginning with an oral reprimand and progressing through a written reprimand, docking pay, and termination.  While flexibility based on the severity of the violation and the attitude of the employee being corrected is permissible, the progression should be generally followed.  It is imperative that an employer maintain a record of all written warnings and reprimands.  The disciplinary program should be reduced to writing in both the safety rules and procedures manual and on the written warning/reprimand itself. 

            V.   Conclusion

The foregoing discussion of the defense of unpreventable misconduct is not a failsafe method to prevent OSHA citations and is not intended to be a conclusive “how-to” list to establish the defense.  If, however, the proactive employer implements these policies and procedures, the chances of receiving a citation for an OSHA violation in the first place will be reduced, and in the event that an OSHA citation is assessed, the employer will be in a much better position to negotiate a reduced penalty and/or successfully contest the citation on the merits. 

By:

DALE A. EVANS, ESQ.

The Soto Law Group, P.A.

2400 E. Commercial Blvd., Suite 400

Fort Lauderdale, FL  33308

www.sotolawgroup.com

TEL:  954-567-1776

FAX:  954-567-1778

Dale A. Evans Jr. is an associate with the firm whose primary practice areas are construction and business law. Dale represents owners, municipalities, general contractors, subcontractors and material suppliers in all phases of business, construction, and insurance defense litigation, and has experience in lien foreclosure, payment and performance bond claims, construction defects, delay claims, and breaches of contract. In addition, Dale assists clients with contract review and drafting, negotiation, licensing, and OSHA defense.