You are showing a colleague the photographs from your vacation to Big Sky Country, still relishing in the sounds of silence and the intoxicating scent of ponderosa pine you left just yesterday, and in walks an OSHA representative welcoming you back with a Citation and Notification of Penalty.
The story, however, does not start or end there. By this point your facility or your jobsite, or both, have been inspected on at least one occasion by OSHA. This could have been a routine inspection, or one triggered by an accident. It is wise to learn about your obligations under OSHA before an inspection and before receiving a Citation and Notification of Penalty because the price you pay thereafter may be significant. That price can be the penalty itself, the legal costs to contest a Notification of Penalty, increased worker’s compensation costs, and even losing future bid opportunities because of required OSHA incident disclosure.
The OSHA of today is a far cry from its origins. OSHA was passed by Congress in 1970 and became law in 1971 after an increase in accidents and deaths spanning five decades, starting with World War II. Manufacturing during the war was focused on defeating Hitler and keeping wages at pace with extraordinary inflation, sometimes sacrificing health and safety for the good of the cause. After World War II the country saw dramatic growth during its chemical revolution where new chemicals were created and deployed in manufacturing and agriculture without a full understanding of their impacts. The environmental movement of the 1960s, seeking to rally others behind their cause, enlisted the workforce and unions to tip the scale against employers, and tip, it did. During a two year legislative debate on workplace safety, pro-business legislators sought to create an advisory OSHA agency, not one which had the power to regulate. Those legislators also battled against inclusion of what we now know as the “general duty” clause. Some battles were won, and others were lost. What remained was a patchwork of ideals that a new executive agency would implement. In the decades since this agency has seemingly expanded its-own power, and seeks to enforce an ever expanding body of its unilateral pronouncements. This body of pronouncements emanate from the very “general duty” clause pro-business advocates fought back against. While that clause is now the law, executive agency edict can fortunately be checked through knowledge and challenge where appropriate.
Contractors should know that they have a general duty to provide a workplace free from recognized hazards likely to cause death or serious physical harm. That workplace includes not only a contractor’s own facilities, but the jobsite as well. The contractor must also endeavor to ensure that its employees perform daily activities in accordance with applicable safety standards, of which there are many. There are general standards, and also those which depend upon the nature of work performed (e.g. illumination, lead, hazmat, electrical, fire protection, welding, confined space, fall protection, chemical). These elaborate standards are set forth initially in the United States Code and the Code of Federal Regulations.[1] OSHA then issues interpretation letters explaining those requirements and how they may apply to a particular circumstance.[2]
It is critical that contractors are intimately familiar with applicable standards, and that contractors develop an ongoing safety training program. This program should be conducted both by internal and external sources. The program can and should consist, in part, of informal training, such as project planning meetings and task specific training by supervisors on a day to day basis. The program should also consist of formal training via internal seminars or outsourced seminars. All training should be documented contemporaneously (who, what, when) because there is little time to scramble for details and documentation after an accident.
Although contractors have a duty to implement safety training, they are not legal guarantors of safety. The mere existence of an accident does not mean that a contractor has failed in its general duty.[3] Since the contractor is required to address only recognized hazards, an unanticipated unusual event does not trigger a violation of the general duty.[4] This is particularly true where OSHA claims that the incident is “serious,” as opposed to “other than serious.” A serious violation exists only where OSHA can prove there is a substantial probability of death or serious physical harm and that the contractor knew about it, or that it should have known about it with the exercise of reasonable diligence.[5] Even where an event could have been anticipated, OSHA must still prove that feasible measures would have materially reduced the likelihood of injury.[6]
Against this backdrop we recircle to our story of the returning vacationer. Following the accident or other inspection the OHSA Compliance Safety and Health Officer would have submitted an inspection report to the Area Director for review. While this secondary review is designed to safeguard contractors from overzealous prosecution by the Officer, the reality is that the Officer carries a great deal of influence with the Area Director. If the Area Director concludes that the employer has violated a rule, a Citation will be issued, and it may be combined with a Notification of Penalty.[7] OSHA is required to give the contractor a reasonable time within which to cure (abate) the violation, though that will not eliminate the penalty if one is assessed.[8] The abatement period specified by OSHA is often unreasonable, but contractors may petition for modification of the abatement date. The petition must include a number of details, such as steps taken to abate the issue by that point, the additional time needed, interim steps implemented to safeguard employees during the abatement period, and a certification that the petition for modification has been posted in a manner visible to the contractor’s employees.[9] This petition must be timely filed or the contractor will have waived its right to seek modification.
The Contractor may also wish to contest the Citation in whole or in part. This may be necessary for any of the reasons outlined in the opening paragraphs of this article. It may also be prudent because an uncontested Citation may lead to more frequent OSHA inspections and increased fines in the event of future violations. A Citation may be contested in only two ways: (1) an informal conference and (2) a formal notice of contest.[10] A formal notice of contest must be initiated with the Assistant Regional Director within fifteen business days of the Citation. The informal conference does not have any impact on that deadline, so if an informal resolution is to be reached, the contractor must initiate the informal conference quickly. The contractor has the right to and should be represented by counsel during both an informal conference and the formal contest proceeding.
The contest proceeding is a formal legal process before the OSHA Review Commission, with a presiding Administrative Law Judge. OSHA will be represented by legal counsel throughout the proceeding. These proceedings are governed by complex rules of procedure and standards.[11] At conclusion of that proceeding, the Administrative Law Judge will prepare a written decision which may be appealed to the appropriate federal circuit court.[12]
In 1776 Adam Smith published his great work The Wealth of Nations wherein he espoused the principal of the “Invisible Hand”; a laissez-faire, hands-off policy where government would let the competitive market self-regulate. Some might say that what Adam Smith was to the Invisible Hand, OSHA is to the heavy hand. While OSHA is often well-intended, it provides a terrible trap for the unwary. You may avoid this trap by learning now about your obligations and defenses under OSHA, because with swift and appropriate action, contractors can position themselves to avoid, defeat, or modify Citations and penalties. Don’t be the contractor who exclaims OSHA-Oh Sh…oot!
Justin R. Zinzow, a Florida Bar Board Certified Construction Specialist, is one of the construction industry attorneys at Zinzow Law, LLC. For more information, or to inquire about a free seminar on this or other legal topics, email info@zinzowlaw.com, or visit www.zinzowlaw.com.
[1] 29 CFR 1926.
[2] https://www.osha.gov/laws-regs/standardinterpretations/2006-10-18
[3] Secretary of Labor, Complainant v. Intercontinental Terminals Company and Erbauer Construction Corporation, 1980 WL 10125, at *8 (Mar. 20, 1980) (stating it is well settled that the happening of an accident, in and of itself, is not proof of a violation of the general duty clause, further opinion testimony, even that of an expert, is not conclusive and it is up to the trier of fact to determine what weight, if any, will be given to the testimony).
[4] Champlin Petroleum Co. v. Occupational Safety and Health Review Commission, 593 F.2d 637 (5th Cir. 1979) (stating that the general duty obligation is not designed to impose absolute liability or respondeat superior liability for employees’ negligence, rather its requires the employer to eliminate feasibly preventable hazards. It is the Secretary’s burden to show that demonstrably feasible measures would materially reduce the likelihood that such injury would have occurred).
[5] Secretary of Labor, Complainant v. H.C. Smith Construction Company, 1980 WL 10503, at *10 (Nov. 13, 1980) (finding that the occurrence of a death is not enough to result in a serious violation, the evidence must show that if a violation occurs, there is a substantial probability that death or serious physical harm could result therefrom).
Western Waterproofing Co., Inc. v. Marshall, 576 F.2d 139, 143 (8th Cir. 1978) (stating that failure to comply with a safety standard under OSHA is willful if done knowingly and purposely by an employer who either intentionally disregards the standard or is indifferent to its requirement); Brennan v. Occupational Safety and Health Review Com’n, 501 F.2d 1196, 1199 (7th Cir. 1974) (finding a serious violation to exist where there is a probability that death or serious physical harm could result from an existing condition or practice adopted unless employer could not with reasonable diligence know of the violation).
[6] Id.
[7] 29 CFR 1903.14
[8] Id.
[9] 29 CFR 1903.14-1903.15
[10] 29 CFR 1903.17 & 1903.20
[11] Part 200, Title 29 CFR.
[12] 29 USCA 660.
