Minimizing OSHA Liability

OSHA penalties can be costly. In fact, a single “repeat” or “willful” violation can result in a penalty of $126,749. And, if you have multiple violations, that number can increase significantly. This article addresses measures any employer can implement to minimize the risk of costly penalties while—at the same time—promote the most important goal which is to provide a safe work environment for employees.
The first step is to take an in-depth look at your organization and assess how you are doing in terms of workplace safety. Questions to ask include: What risks are inherent in the tasks your employees are performing? Have you implemented sufficient and effective engineering, administrative, and/or other safety controls? Do you value leading indicators? What do your lagging indicators indicate? Is management truly committed to safety? What is the culture? For this step to work, this must be an “honest” look.
Simply “having” versus “implementing” a health and safety program are two very different things. It is critical that you communicate your safety policies and procedures to employees—training, inspections, retraining, and discipline are required. Also, all of your efforts must be documented and records maintained. This might include distributing written work rules to employees, maintaining sign-in sheets for daily toolbox talks, and documenting any discipline for employee safety violations. Be of the mindset: If it is not written down, it did not happen.
What will you do if OSHA shows up? This is an important consideration because your first notice of an inspection will likely be when the OSHA inspector is at your door. You should designate one employee as the company representative for an inspection—in advance of any inspection. This person will accompany the inspector wherever he or she goes. As a result, there will be one consistent “voice” on behalf of the employer. Having a good representative is critical, especially considering that anything the representative tells the inspector may later be used as evidence against the company. You should also be prepared to limit the scope of any inspection to the probable cause providing the claimed basis for the inspection.
OSHA deadlines are often inflexible so you must know and adhere to them. Any inactivity on your part may result in your loss of one or more critical rights. If you decide to contest a citation, you must do so within 15 working days of your receipt of the citation. Another important right is to request an informal conference with OSHA within the same 15-working-day period that applies to contesting a citation. Informal conferences are often helpful because they present an opportunity at an early stage to negotiate a penalty reduction and/or an amendment, withdrawal, or reclassification of a cited regulation.
It is also important to have at least a basic understanding of certain procedural and substantive defenses to citations, including—perhaps most importantly—unpreventable employee misconduct. The unpreventable employee misconduct defense warrants special discussion. Indeed, if you can establish that an employee’s violative conduct was unknown to the employer and in violation of an adequate work rule which was effectively communicated and uniformly enforced, then no citation should be issued. This underscores the importance of not only establishing a comprehensive and effective safety plan, but also communicating the plan to employees and inspecting the site and enforcing the plan.
As the above should make clear, when it comes to OSHA, it is of critical importance to provide for more than “an ounce of prevention.” By seeking to incorporate the above strategies, the dual purposes of promoting safety and minimizing exposure will be served, all to your benefit and the benefit of your employees. ■

About the Author:
Michael Rubin is a partner in the law firm Goldberg Segalla, where he serves as chair of the OSHA and Worksite Safety Practice Group. Michael has counseled clients across multiple industries regarding the defense and management of OSHA inspections and citations. He has on-the-ground experience conducting accident investigations and represents companies at all stages of OSHA enforcement proceedings. He frequently provides safety and risk-avoidance workshops on best practices for minimizing OSHA liability. He can be reached at 716.844.3477 or
Modern Contractor Solutions, September 2017
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