THE OCCUPATIONAL SAFETYAND HEALTH ADMINISTRATION (“the Administration”) enforces the Occupational Safety and Health Act of 1970 (“OSHA”). From the employer’s perspective, emphasis on workplace safety is important because it reduces out-of-pocket costs, increases a business’ productivity and opportunities, and reduces the risk of penalties for OSHA violations and potential for criminal liability.
OSHA Standards Applicable to Most Industries
Specific OSHA workplace requirements are mostly listed in lengthy "standards." The Construction Standards (29 C.F.R. 1926) apply to construction activities. The General Industry Standards (29 C.F.R. 1910) apply to most other industries. In addition, the OSHA statute imposes an additional “General Duty” (§5(a)(1)) on employers. The standards regulate virtually every aspect of workplace health and safety including, but not limited to, fall hazards, electrical hazards, enclosed spaces dangers, scaffolding, air contaminants, noise and trenching. The broader General Duty requirements apply to workplace conditions not covered by a standard if OSHA can prove the condition is “recognized” by the industry or by the employer as a hazard that can produce death or serious bodily harm.
Employers Will Be Cited By OSHA If . . .
An employer may receive a citation any time its employees are exposed to an unsafe act or condition, even if another employer or contractor on the work site created the unsafe act or condition, or another employer or contractor has taken responsibility for preventing the unsafe act or condition. A company also may be cited if it created the condition and/or was responsible for preventing it, even if none of its employees were exposed to the condition. Even in situations where no one is injured, if an OSHA investigator discovers the condition and concludes that somebody could have been injured, the company could be cited.
Citations and Penalties
If, at the conclusion of a site inspection, an OSHA investigator concludes that the employer has violated OSHA, the Administration can assess citations which include monetary penalties and require the employer to abate the cited hazard by a certain date. The amounts of fines can be negotiated with the Administration. The types of citations include:
Other Than Serious: The employer has allowed an unsafe condition to exist that has a direct relationship to safety and health, but probably would not result in death or serious physical injury. The Administration can impose a civil fine of up to $7,000 for an "other than serious" violation. However, fines are almost always substantially less than $7,000, particularly for employers with no prior similar citations in the preceding three (3) years.
Serious Violation: The employer has allowed an unsafe condition to exist that has a direct relationship to safety and health, and where there is a substantial probability that any injury will result in death or serious physical harm. The Administration must impose a mandatory civil fine of up to $7,000 for a "serious" violation. The amount the Administration proposes is often less than $7,000. The employer must pay some amount within the fine range, often on the higher end of the spectrum (i.e., $5,000 or more).
Repeated Violations: The employer has violated a similar or substantially similar regulation in the past five years, in which case, a fine of up to $70,000 may be imposed. Again, the fine proposed will be often be less than the maximum. To be the basis for a repeated citation, the original citation must be a final citation. Pending citations subject to contest cannot be the basis for a repeated citation.
Failure to Abate: When the employer fails to abate an hazard within the abatement period proscribed by the Administration, the employer can become liable for a fine of up to $7,000 per day for every day that the hazard continues to exist beyond the abatement period.
OSHA Enforcement Trends
All OSHA offices increasingly enforce workplace violence General Duty citations, and cases of alleged retaliation against employees for reporting workplace health and safety conditions. Workplace violence involves any preventable physical assault, or threatening behavior occurring within the workplace. Retaliation occurs when an employer subjects an employee to any form of adverse employment action (discharge, suspension, demotion, etc.) because the employee made a good-faith complaint about workplace health or safety issues, aided another person in making such a complaint, or cooperated with an OSHA investigation. Damages for subjecting an employee to retaliation include reinstatement, back pay, attorneys’ fees, and/or expert witness fees.