OSHA Citations and Proposed Penalties: How to Beat the Rap

Every safety and health manager strives to eliminate or materially reduce the number of injuries and illnesses that occur each year in the workplace. In order to achieve this laudable goal, a safety and health manager has to take a proactive approach to safety and health.

In this regard, safety and health managers should develop written safety and health rules, communicate those rules to employees, take steps to discover the violations and ensure that employees who violate those rules are disciplined accordingly.

In addition to eliminating or materially reducing the number of injuries and illnesses that occur each year in the workplace, this also will enable the employer to assert a successful defense in response to any OSHA citation and proposed penalty.

The federal Occupational Safety and Health Review Commission, the agency in charge of adjudicating workplace health and safety disputes between OSHA and private industry, has held that in order to establish a violation of a standard or regulation, OSHA has the burden of proving the employer had actual or constructive knowledge of the violation condition (Bel Tel. Co., 19 BNA OSHC 1097 (No. 98-1748, 2000)). The violative condition typically consists of an hourly employee violating the terms of the cited standard or regulation (Burch Construction Inc., 22 BNA OSHC 1275 (No. 07-0663, 2008).

Every safety and health manager strives to eliminate or materially reduce the number of injuries and illnesses that occur each year in the workplace. In order to achieve this laudable goal, a safety and health manager has to take a proactive approach to safety and health.

In this regard, a safety and health manager should develop written safety and health rules, communicate those rules to employees, take steps to discover the violations and ensure that employees who violate those rules are disciplined accordingly.

In addition to eliminating or materially reducing the number injuries and illnesses that occur each year in the workplace, this also will enable the employer to assert a successful defense in response to any OSHA citation and proposed penalty.

STAHL ROOFING

The federal Occupational Safety and Health Review Commission, the agency in charge of adjudicating workplace safety and health disputes between OSHA and private industry, has held that in order to establish a violation of a standard or regulation, OSHA has the burden of proving that the employer had actual or constructive knowledge of the violative condition (Bel Tel. Co., 19 BNA OSHC 1097 (No. 98-1748, 2000)). The violative condition typically consists of an hourly employee violating the terms of the cited standard or regulation (Burch Construction Inc., 22 BNA OSHC 1275 (No. 07-0663, 2008)).

The commission has held that in order to establish that the employer had constructive knowledge of the violative condition, OSHA has the burden of proving that the employer could have known of the violative condition with the exercise of reasonable diligence (Donahue Indus. Inc., 20 BNA OSHC 1346 (No. 99-0191, 2003)). The commission also has held that whether an employer was reasonably diligent involves a consideration of several factors, including, “The employer's obligation to have adequate work rules and training programs, to adequately supervise employees and to take measures to prevent the occurrence of the violation.”

In cases litigated before the commission, employers have been able to assert a successful defense in response to OSHA citations and proposed penalties by arguing that the government failed to meet its burden of proving constructive knowledge of the violative condition. In support of this argument, these employers presented evidence at trial that they exercised reasonable diligence by developing work rules, communicating those rules to employees, taking steps to discover the violations and effectively disciplining employees who violated those rules.

In Stahl Roofing Inc. (19 BNA OSHC 2179 (No. 00-1268, 2003)), for example, an OSHA compliance officer witnessed two employees working on the roof of a house without wearing fall protection and personal protective equipment. OSHA issued a citation to Stahl, alleging that the two-man crew failed to wear fall protection in violation of 29 C.F.R. § 1926.501(b)(13) and failed to wear personal protective equipment in violation of 29 C.F.R., § 1926.102(a)(1).

The issue in the case before the commission was whether OSHA met its burden of proving that Stahl had constructive knowledge of the violative conditions — the violative conditions being the two-man crew working on the roof of the house without wearing fall protection and personal protective equipment (PPE). That is, whether Stahl could have known of the violative conditions with the exercise of reasonable diligence.

The commission determined that Stahl had written work rules requiring employees to wear fall protection and PPE. In this regard, Stahl had a work rule requiring that safety harnesses be worn and that employees be tied off at any unprotected position above 6 feet. Stahl also had a work rule requiring that safety glasses be worn when performing any operation that may present a hazard of eye injury, such as hammering nails into a roof.

The commission also determined that Stahl adequately communicated these rules to its employees. The commission reasoned that during new-hire orientation, Stahl gave the employees a copy of its safety rules and went over each safety rule with them. Stahl also provided a demonstration to the employees regarding how to use the safety equipment that is issued to them, and required the employees to demonstrate that they know how to use the safety equipment and sign a form stating that they will comply with the safety rules. Stahl also held periodic company-wide safety meetings and weekly toolbox meetings where the safety rules are reinforced.

The commission also determined that Stahl adequately supervised its employees. The commission explained that Stahl supervisors visited each worksite at least once a day. The safety manager and safety director also made regular, unannounced visits to the worksites. There was also no evidence that Stahl should have perceived a need for additional monitoring of the employees.

The commission also determined that Stahl had a written disciplinary procedure and enforced the procedure when employees violated the safety rules. Regarding the written disciplinary procedure, the first step was an oral reprimand, the second step was a written reprimand, the third step was withholding of pay and the fourth step was termination of employment. There was flexibility in the progression of the written disciplinary procedure based on the severity of the safety infraction and other relevant factors.

DONAHUE INDUSTRIES

Regarding the enforcement of the written disciplinary procedure, Stahl previously had issued written warnings, withheld pay and even terminated employees for safety infractions. Stahl also issued two written reprimands and fined the two-man crew for their safety infractions. Stahl terminated one of the members of the two-man crew after he committed subsequent safety infraction.

The commission concluded that OSHA had not met its burden of proving that Stahl failed to exercise reasonable diligence and therefore could have known of the violative conditions. For this reason, the commission vacated the citation.

Another example is Donahue Industries Inc. (20 BNA OSHC 1346 (No. 99-0191, 2003)). In Donahue Industries Inc., an employee electrician repaired the wiring of a spot welder machine without grounding the machine. OSHA issued a citation to Donahue alleging that an employee failed to ground the spot welder machine in violation of section 1910.255(c)(6).

The issue before the commission was whether OSHA met its burden of proving that Donahue had constructive knowledge of the violative condition — the violative condition being the employee electrician failing to ground the spot welder machine. The commission determined that Donahue had a work rule requiring portable electric tools be grounded. The work rule stated: “Portable electronic tools shall be effectively grounded at all times while connected to a power source, with the exception of UL-approved double insulated tools.”

The commission also determined that Donahue adequately communicated this rule to its employees. In this regard, Donahue gave the employees a copy of its safety rules during new-hire orientation. Donahue also required new employees to view training videos stating that welding machines “should be checked to make sure they are grounded and that employees should ‘never remove or override a safety feature.’” Therefore, employees knew that they should ground all electrical equipment, even though the work rule did not specifically state that all electrical equipment like the spot welder should be grounded.

The commission also determined that Donahue adequately supervised its employees. The commission reasoned that Donahue performed quarterly inspections of the electrical equipment for properly grounding. Moreover, the spot welder machine previously had been grounded prior to the repair of the wiring of the machine.