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).

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.

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 [email protected].