By Phillip B. Russell, Ogletree Deakins Nash Smoak & Stewart PC
2023 is likely to bring more OSHA inspections than ever before. The new leadership at the agency either came from Cal/OSHA or Big Labor, neither of which are known for having a cooperative relationship with employers. OSHA also is making policy changes, shifting enforcement priorities, and hiring more compliance safety and health officers (CSHOs) to conduct more inspections. The agency has increased the number of CSHOs by almost one-third in the last two years and, with the agency facing high turnover, about one in four have been on the job for less than one year. And one of the biggest changes involves an exponential increase in penalties per citation.
Now more than ever, it is critical for employers to implement strategies to avoid or minimize OSHA citations, especially in industries like electrical contracting where the hazards are the same or similar for most OSHA inspections.
Employers should have four things in place before OSHA shows up. If an employer can show all four, then even if tragedy strikes and there is a fatality or serious incident, the employer will be in a stronger position to avoid or minimize a citation — and save lives.
Policies and Procedures
Every employer should have robust safety policies and procedures that generally cover the hazards employees are most likely to encounter in the specific workplace. The types of policies and procedures will vary among industries and by job tasks. What works in construction may have no impact in a manufacturing facility. That is one reason OSHA itself has standards that vary by industry. The key is to address the hazards that workers are most likely to face in the industry, at the specific employer, and performing specific tasks.
Having the best policies and procedures in the industry will serve no purpose if they are not properly and effectively communicated to workers and supervisors on the job sites. When OSHA shows up, they usually interview non-supervisor employees first. The CSHO will ask workers whether they know the company’s safety program and specifically whether they know the particular safety policy or procedure, such as an internal traffic control plan (ITCP). The CSHO also will ask workers whether they have been trained on the company’s policies and procedures. It is critical for those workers to accurately and confidently tell OSHA they know the company’s policies and procedures and they have been fully and repeatedly trained on how to comply with them and to report any work zone safety issues.
During inspections, CSHOs will interview job site supervisory and safety personnel; usually after interviewing non-supervisory workers. A key line of questioning will be how they know workers are following the company’s safety policies and procedures and their training on those. This means employers must also have a robust program for making sure workers are following the rules and staying safe. It is part of how an employer can avoid incidents, which is the purpose of having safety rules and training. It is also an important way for employers to minimize or avoid OSHA citations, even if tragedy strikes.
Some workers, however, just won’t follow the company’s safety policies and procedures and even though they have been trained repeatedly, they ignore that too. Employers also must have a robust safety enforcement strategy. Coaching workers on near misses or procedure violations may be helpful in the short-run, but any worker who ignores more informal attempts at addressing safety issues must be dealt with more formally and firmly. Employers must fire unsafe workers: especially supervisory personnel who don’t do their part in keeping the workplace safe. Every OSHA inspection involves a request for documents. And every request for documents includes a request for the employer’s safety-related disciplinary records. Having none — especially on a larger project — suggests to the CSHO the employer is not enforcing its own safety program. Their perspective is that employers should not tolerate unsafe workers, supervisors, or conditions — and someone’s job should be at stake if they ignore the rules.
Will these Four Components Help Save Lives?
Absolutely. Having these four components in place saves lives and is good for business. Especially in a tight labor market, workers simply will not work for an employer who does not take safety seriously. Employers demonstrate that commitment by effective implementation of these four components.
Can an Employer Avoid or Minimize an OSHA Citation, even if Tragedy Strikes?
Yes. OSHA does not write citations just because there was a fatality or other serious injury or illness. OSHA must prove the employer violated a specific OSHA standard or the general duty clause of the OSH Act. OSHA writes citations it believes it can win (yet, sometimes, OSHA writes a citation to issue a press release or for other improper motives). They know that if they write a citation not supported by the evidence, the employer will file a notice of contest.
OSHA does not decide if OSHA got it right in a citation. The U.S. Occupational Safety and Health Review Commission (OSHRC or Review Commission) reviews contested citations. OSHRC is not part of OSHA and it is not part of the U.S. Department of Labor. OSHRC can and will vacate any citation item that OSHA does not support with evidence.
These four components are also the elements of an affirmative defense employers can raise in defense to any citation. It is called the “unavoidable employee misconduct” defense. But the name is misleading. The defense has nothing to do with what an employee did or did not do. An employer can only raise the defense if it can prove it has all four of these components in place, which means the focus is on what the employer (not its workers) did or did not do to avoid the incident.
New OSHA Citation Policy Multiplies Penalties
OSHA recently announced a dramatic change in its citation policy that will allow it to multiply proposed penalties in citations. It does so by essentially prohibiting citations from grouping items within a citation.
On January 26, 2023, OSHA issued a press release about a significant change in long-standing policy related to instance-by-instance issuance of citations that will become effective in 60 days and alter the landscape of certain inspections. The stated purpose of the policy change is “to make [OSHA’s] penalties more effective in stopping employers from repeatedly exposing workers to life-threatening hazards or failing to comply with certain workplace safety and health requirements.”
OSHA also issued an enforcement memorandum reminding regional administrators and area directors of their authority not to group violations. The practice of grouping violations typically involves issuing a citation with multiple subparts that carry no penalty but state alternative theories or factual bases to justify the issuance of the citation. Those subparts carry no additional penalty, but they may require abatement of violations beyond the first listed instance. This guidance applies to even the lowest level of citable violation: that which is considered other-than-serious.
Employers should expect significantly increased penalties multiplied by the number of instances cited. It is fair to assume that the number of cases contested, due to the increased overall penalty exposure, will increase dramatically, depending upon how widespread this practice is utilized and the time to resolution of OSHA citations increases.
Phillip B. Russell is a board-certified OSHA and employment lawyer who helps contractors avoid or minimize OSHA citations, improve safety, and manage labor and employment legal issues nationwide. Phillip is a long-time IEC member honored with the 2022 Industry Achievement Award. He can be reached at email@example.com.