OSHA Citations and Proposed Penalties: How to Beat the Rap

The commission also determined that the work rule was adequately enforced, explaining that Donahue had a written disciplinary procedure and disciplined employees, including the employee involved in the case, for violating safety rules. The employee involved in the case was terminated because his actions led to the death of another employee.

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

In addition to the holdings and reasoning in these two cases, there are other principles that every safety and health manager should take into consideration. In this regard, the commission does not require that the work rules be overly specific. Rather, the work rules can broadly incorporate the requirements of the applicable OSHA standards and regulations. The work rules also should incorporate even the most basic tenets of workplace safety and health, such as the prohibition of an employee bypassing or removing an existing guard on a machine or piece of equipment.

The commission also does not require that the work rule be in writing (See Aquatek Sys. Inc., 21 BNA OSHC 1400 (No. 03-1351, 2006)). It has been noted, however, that an employer “runs the risk of the oral work rule being denied if the credibility of his evidence is in dispute” (See John B. Kelly Inc., 14 BNA 1628 (No. 89-350, 1990)). In order to avoid this risk, a safety and health manager should formulate all work rules into writing.

The commission also does not require that employers communicate the work rules to employees in a particular format or frequency. Nor does the commission require an employer to document communication of the work rules to employees. Experience dictates, however, that a safety and health manager should communicate the work rules to employees on a regular basis.

The communication of the work rules should be in the form of giving a copy of the work rules to employees and orally reviewing the work rules with them. This should take place during new-hire orientation, safety and health meetings and training sessions. A safety and health manager also should place a copy of the work rules in the facility so that employees can readily access and review them when necessary. In order to avoid the risk of employees claiming that the work rules were not communicated to them, a safety and health manager should require that employees sign a form certifying that the work rules were communicated to them and that they understand the work rules.

The commission also does not require a particular form of employee supervision. A safety and health manager should conduct regular unannounced safety and health audits of the workplace. During the safety and health audits, a safety and health manager should look for compliance with the written work rules as well as safety and health hazards in the workplace. The safety and health manager should document the findings, corrective actions and corrective action completion dates. The safety and health manager should ensure that the corrective actions are complete on or before the documented corrective action completion dates.

The commission requires, however, that an employer develop a written progressive disciplinary procedure and that the employer effectively enforces the procedure for violations of work rules (See Rawson Contractors Inc., 20 BNA OSHC 1078, 1081 (No. 99-0018, 2003)). The commission recognizes that there is a need for flexibility in the progression of the disciplinary procedure based on the severity of the safety infraction and other relevant factors (See Stahl Roofing Inc. 19 BNA OSHC at 2182). The commission will examine both pre-inspection and post-inspection discipline when determining whether an employer effectively enforces the procedure for violations of work rules (Precast Services Inc., 17 BNA OSHC 1454, 1455-1456 (No. 93-2971, 1995)).

It is imperative that a safety and health manager ensure that employees who violate work rules are disciplined in accordance with the written disciplinary procedure. The safety and health manager should document the discipline given to the employee, even if the discipline is an oral reprimand. Though this documentation is not legally required, its absence can prove to be fatal in establishing that the employer exercised reasonable diligence.

In summary, a safety and health manager should develop written work rules, communicate those rules to employees, take steps to discover the violations and ensure that employees who violate those rules are disciplined accordingly. Not only will this eliminate or materially reduce the number injuries and illnesses that occur each year in the workplace, this also will enable an employer to beat the wrap of any OSHA citation and proposed penalty.

Michael T. Taylor is a member of the Arent Fox LLP OSHA Practice Group in Washington, D.C. He focuses on all aspects of occupational safety and health law. He represents employers and trade associations in a wide range of industries, including but not limited to health care, chemical and petrochemical, refining, electric utility, manufacturing, construction and food services industries. He represents employers and trade associations during federal and state enforcement litigation and rulemaking proceedings. He also provides compliance counseling, catastrophe management, safety and health audits and due diligence reviews for clients. He is well-versed in all aspects of the National Labor Relations Act. He can be reached at taylor.michael@arentfox.com.