Do You Understand Your Obligations Under OSHA? Little Citations Can Lead to Big Penalties

You can ask any employer what agency they fear the most and OSHA tends to be at the top of the list. And yet many employers do not understand what their obligations are under the Occupational Safety and Health Act (“OSH Act”) and, therefore, are not prepared when OSHA shows up at their door. The Occupational Safety and Health Administration (“OSHA”) is authorized to enforce the safety and health laws promulgated pursuant to the OSH Act.

What Are My Responsibilities Under OSHA?

Under the OSH Act, employers have a responsibility to provide a safe workplace. Specifically, under the General Duty Clause (29 U.S.C. §654(a)(2)), all employers must provide employees a workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm.” Among other obligations, employers must be familiar with mandatory OSHA standards that apply to their industry and operations, as well as examine workplace conditions to make sure they conform to applicable standards and minimize or reduce hazards.

When Might OSHA Show Up?

The authority granted to OSHA includes the authority to conduct inspections at worksites within its jurisdiction. Per OSHA guidance, OSHA focuses its limited inspection resources (which is only approximately 2,100 enforcement officers nationally) on the most hazardous workplaces in the following order of priority:

1. “Imminent danger situations – hazards that could create death or serious physical harm”;
2. Severe injuries and illnesses that employers have reported to OSHA;
3. “Worker Complaints – allegations of hazard or violations,” which may be anonymous;
4. “Referrals of hazards from other federal, state or local agencies, individuals, organizations or the media”;
5. “Targeted inspections – inspections aimed at specific high-hazard industries or individual workplaces that have experienced high rates of injuries and illnesses; and
6. “Follow-up inspections – checks for abatement of violations cited during previous inspections.”

When Do You Have to Call OSHA?

Although no employer wants OSHA to visit their facility or otherwise want to contact OSHA, there are occasions when employers must call OSHA. Employers must notify OSHA when an employee is killed on the job or suffers a work-related inpatient hospitalization, amputation, or loss of an eye. Employers must report fatalities within 8 hours and work-related inpatient hospitalizations, amputations, and loss of an eye within 24 hours.

What are OSHA’s Penalties?

In January 2018, OSHA increased its fines by 2% to adjust for inflation. This latest increase is on top of the 78% increase we saw in penalties in 2016. Under current legislation, OSHA is allowed to increase their fines to match inflation by January 15th of each year, meaning fines will continue to increase over the coming years.

As of January 2, 2018, the OSHA penalties are as follows:

Should I Settle an OSHA Citation?

Employers are frequently faced with the decision of whether they should settle an OSHA citation when they receive it or fight it. Careful consideration needs to go into settling OSHA citations. Because the first citation received by a company typically includes smaller citations, there is a tendency to pay the smaller fines in order to avoid legal fees and to put the matter behind them. The foregoing decision seems easy when taken in consideration with the fact that OSHA typically extends the opportunity to enter into an informal settlement agreement that includes a 30% penalty reduction off the bat. However, it is important to consider the impact of that decision, as a decision to pay or settle a seemingly “small” citation can come back to haunt a company when a similar citation is issued at a different location. Something that looks simple can become complicated and expensive, especially since OSHA can consider previous citations when assessing a new citation, thereby resulting in a repeat citation that comes with a much higher penalty. While the OSHA Field Operations Manual states the look-back period for a repeat citation is only three years, the OSHA Commission has decided that the Field Manual does not bind it and it can look back as far as it wishes to do so. This position has been supported by at least one circuit court of appeals.

A company has 15 business days to contest a citation. A company may hold an informal conference with the issuing OSHA office during such period to discuss possible settlement. If this is an insufficient amount of time to consider all the ramifications of settling the citation, the company should file a notice of contest. The company can always settle the case later if it decides to do so after careful thought and reflection. The most important takeaway here is not to allow OSHA to bait you into settling with a small penalty only to later use that same settlement against you to a much greater effect.

What Were the Top 10 Most Frequently Cited OSHA Standards in FY 2017?

The following were the top 10 most frequently cited standards by Federal OSHA in fiscal year 2017 (October 1, 2016, through September 30, 2017):

1. Fall protection, construction (29 CFR 1926.501)
2. Hazard communication standard, general industry (29 CFR 1910.1200)
3. Scaffolding, general requirements, construction (29 CFR 1926.451)
4. Respiratory protection, general industry (29 CFR 1910.134)
5. Control of hazardous energy (lockout/tagout), general industry (29 CFR 1910.147)
6. Ladders, construction (29 CFR 1926.1053)
7. Powered industrial trucks, general industry (29 CFR 1910.178)
8. Machinery and Machine Guarding, general requirements (29 CFR 1910.212)
9. Fall Protection–Training Requirements (29 CFR 1926.503)
10. Electrical, wiring methods, components and equipment, general industry (29 CFR 1910.305)

For assistance with your workplace safety issues, please contact Attorney Jodi Arndt Labs.

Written By:
Attorney Jodi Labs