#45: OSHA: A Primer
For the first time since 1990, the Occupational Health and Safety Administration (“OSHA”) has just increased its maximum penalties for rule violations. This is a good time to review the basics of OSHA enforcement.
OSHA rules on workplace safety include universal rules governing all industries, and industry-specific rules like those for the construction industry, codified at 29 CFR Part 1926.
Nationwide OSHA conducts about 35,000 inspections annually. Some are routine visits, some follow up on employee complaints or tips from whistleblowers, and others occur after mandatory reporting of a fatality (which must be reported within eight hours) or other serious accident such as loss of an eye or a limb (which must be reported within twenty-four hours). Legally, either the employer’s or owner’s permission, or a warrant, is required before an OHSA inspector may inspect a private facility or non-public work site. Given how easy it is to establish probable cause for a warrant in the non-criminal administrative setting, refusing a warrantless request to inspect may be unwise. OSHA inspectors have long memories, and refusals can end up painting a target on your back.
When OSHA inspectors show up, they will typically announce themselves to management and request permission or display a warrant to inspect all or part of a facility or work site; do a walk-around (which someone from management should always accompany); interview employees (sometimes privately, i.e., out of the presence of management); request documents (the OSH Act requires employers to keep records of employee injuries and illnesses, which must be made available on request without a subpoena); and confer with management (the “closing conference”) about any violations they spot. If violations can be abated immediately, it’s a good idea to do so before the inspector leaves.
OSHA has six months after the inspection to issue citations for any violations found. Citations will list the rule violated, the classification of the offense (e.g., “serious,” “repeat,” “willful”), the date by which the condition must be abated, and the proposed penalty – which effective August 1, 2016, can be up to $12,471 per “serious” violation and $124,709 per “repeat” or “willful” violation. Citations proposing the maximum penalty, however, are relatively rare. The OSH Act requires that in assessing penalties, “due consideration” must be given to four criteria: the size of the employer’s business, the gravity of the violation, the employer’s good faith, and any prior history of violations. 29 U.S.C. § 666(j).
Within fifteen work days of receiving a citation, an employer may request an informal conference with the OSHA Area Director, either in an effort to settle (the Area Director has authority to downgrade classifications and negotiate penalties) or simply to gather information. Within those same fifteen work days, an employer must give OSHA written notice that a citation is being contested.
If a citation is contested, a trial will be scheduled before an administrative law judge, whose decision is then reviewable by the Occupational Safety and Health Review Commission, whose decision is, in turn, appealable to the United States Court of Appeals. At the trial, the burden of is on OSHA to prove by a preponderance of the evidence “(1) that the cited standard applies; (2) that there was a failure to comply with the standard; (3) that employees had access to the violative condition; and (4) that the employer had actual or constructive knowledge of the violation.” P. Gioioso & Sons, Inc. v. Occupational Safety and Health Review Commission, 675 F.3d 66, 72 (1st Cir. 2012). The knowledge element is often challenged, but rarely successfully. In particular, “an employer can be charged with constructive knowledge of a safety violation that supervisory employees know or should reasonably know about.” P. Gioioso, id. at 73.
Lastly, a word of warning to GCs: keep an eye on your subs! OSHA “may issue citations to general contractors at construction sites who have the ability to prevent or abate hazardous conditions created by subcontractors through the reasonable exercise of supervisory authority regardless of whether the general contractor created the hazard…or whether the general contractor’s own employees were exposed to the hazard.” Solis v. Summit Contractors, Inc., 558 F.3d 815, 818 (8th Cir. 2009).