This Note provides an overview of employers' rights and obligations under the Occupational Safety and Health Act of 1970 (OSH Act) and its corresponding safety and health regulations. It also summarizes inspection and enforcement efforts by the agency that enforces the OSH Act, the Occupational Safety and Health Administration (OSHA). This note addresses federal law relevant to employers in every state and refers to States that may impose additional requirements on employers in this topic area.
This Note gives a broad overview of employers' obligations to provide employees with a safe working environment. In particular, it focuses on employers' rights and obligations under the Occupational Safety and Health Act (www.practicallaw.com/9-501-7798) (OSH Act) and its corresponding safety and health regulations.
In particular, this Note addresses:
The scope and essential requirements of federal legislation governing health and safety in US workplaces.
A brief discussion of state health and safety plans.
The two primary sections of the OSH Act that create employer duties, the General Duty Clause and Specific Safety Standards.
Employee health and safety complaints and statutory prohibitions against retaliation under the OSH Act.
An overview of OSH Act requirements regarding the duty to maintain health and safety records and the duty to report injuries and illnesses in the workplace.
Oversight activities by the Occupational Safety and Health Administration (www.practicallaw.com/1-501-7797) (OSHA) including federal inspections and enforcement for violations.
The kinds of violations and penalties corresponding with each.
A chronology of enforcement activities following an initial citation, including an informal conference, administrative action and petition for review.
A brief description of recent enforcement trends under the Obama administration.
The OSH Act is a comprehensive piece of legislation designed to regulate safety and health in the workplace. OSHA oversees and enforces the OSH Act by issuing regulations and holding employers responsible for violations through inspections and corrective action.
Although the OSH Act applies in every state, the District of Columbia, Puerto Rico and all American territories, many states maintain their own OSHA-approved program. These must meet with federal OSHA approval and maintain the minimum standards of the federal OSH Act.
The OSH Act defines an "employer" as a person engaged in interstate commerce who has employees (29 U.S.C. § 652(5)). "Person" is defined as "one or more individuals, partnerships, associations, corporations, business trusts, legal representatives, or any organized group of persons" (29 U.S.C. § 652(4)). These two broad definitions mean that the OSH Act covers any entity or organization that has at least one employee, including non-profit organizations.
However, the OSH Act does not cover:
Public employers like federal government, state government and state political subdivisions. However, state-approved plans may cover public employers in states where they apply (see State Health and Safety Regulations).
Workplace health and safety where conditions are regulated by other federal agencies (such as mining and nuclear energy) and family farms.
The OSH Act covers all employees, regardless of their title, status or means of compensation. Independent contractors (www.practicallaw.com/6-502-8864) are not covered under the OSH Act. It is common for employers who have been cited for a health and safety violation to claim that the individuals exposed were independent contractors, not employees.
When determining whether an individual is an employee or an independent contractor, OSHA uses a multi-factor "economic realities" test. This test focuses primarily on whether and to what extent the alleged employer exercises control over the individual's work and how the individual is compensated (see Loomis Cabinet Co. v. OSHRC, 20 F.3d. 938 (9th Cir. 1994) and Secretary of Labor v. Allstate Painting and Contracting Co., 21 O.S.H. Cas. (BNA) 1033, 2005 O.S.H.D. (CCH) ¶ 32,804).
Although employment in every state is covered by the OSH Act, state governments may regulate health and safety matters if they develop a state plan that is approved by federal OSHA. For federal OSHA to approve a state plan, the state must assure federal OSHA that it has in place all the structural elements necessary for an effective occupational safety and health program, including:
Appropriate state legislation, regulations and procedures for setting safety and health standards.
An entity that investigates workplace health and safety and enforces the state's safety standards.
A mechanism by which employers can appeal citations and penalties issued under the state plan.
Once a state's proposed plan receives final approval, federal OSHA relinquishes jurisdiction over workplace health and safety matters within the state. The following states and territories regulate health and safety for private sector employers under their own approved state plans: Alaska, Arizona, California, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington and Wyoming. Effective September 21, 2012, the status of Hawaii's state plan was temporarily modified from final approval to initial approval under the terms of an Occupational Status Agreement. OSHA reinstated concurrent federal enforcement authority over certain private employers pending the necessary corrective action by the state.
The following states and territory have approved state plans to regulate health and safety only for public sector employers (state and local government): New York, Connecticut, Illinois, New Jersey and the Virgin Islands.
Although most approved state plans incorporate the safety and health standards adopted by federal OSHA and implement and enforce those standards in much the same way, there can be significant differences between the standards and requirements of federal OSHA and those of an approved state plan. For example, under federal OSHA regulations, employers are required to report any accident that results in a fatality or the hospitalization of three or more employees. By contrast, under Kentucky's approved occupational safety and health plan, employers' reporting obligations are expanded to require the reporting of any accident involving the hospitalization of a single employee and any accident involving an amputation. This Note does not cover the details of any of the approved state plans. For more information on state occupational safety and health plans, see Practice Note, State Occupational Safety and Health Plans: Overview (www.practicallaw.com/3-525-5706).
There are two primary sections of the OSH Act that impose obligations on employers:
The General Duty Clause.
Specific Safety Standards.
The General Duty Clause, codified at Section 5(a)(1) of the OSH Act, imposes a general requirement on an employer to keep its workplace free of any recognized hazards that are likely to cause death or serious physical harm to its employees (29 U.S.C. § 654(a)(1)). The clause is a catch-all provision that can be cited in instances when there is no specific OSHA safety standard applicable to the alleged hazard.
An employer violates the general duty clause if:
The employer failed to keep the workplace free of a hazard to which employees were exposed.
The hazard was recognized.
The hazard was likely to cause death or serious physical harm.
There was a feasible and economically viable way to correct the hazard.
For more information, see OSHA's Field Operation Manual, Directive CPL 02-00-150, Chapter 4, Section III.
The most important of these elements is recognized hazard.
For there to be a general duty clause violation, the employer must have either:
Actual knowledge. The easiest way for OSHA to meet this requirement is by showing that the employer was aware that a condition existed and it was hazardous. Actual knowledge can be proven with evidence of employee complaints about the hazardous condition, previous accidents or the employer's own internal warnings or work rules.
Constructive knowledge. Recognition can also be demonstrated through constructive knowledge, most commonly through proof that an employer's industry was aware of a hazardous condition associated with a particular piece of equipment, chemical or work practice. Industry recognition can be demonstrated through testimony of safety experts in the industry or by reference to consensus safety standards from certified safety organizations (for example, the American National Standards Institute (ANSI) or the National Fire Protection Association (NFPA)), industry publications or manufacturers' warnings.
Employers should pay particular attention to citations issued under OSHA's general duty clause. This is especially true if the employer has received a citation in response to an accident that resulted in the death or serious injury of an employee. If a general duty clause citation is affirmed against an employer, that citation can be used as evidence that the employer knew of the dangerous condition that caused the accident and willfully disregarded it. This can be extremely damaging evidence in a personal injury, wrongful death, intentional tort or workers' compensation lawsuit brought under state law.
Section 5(a)(2) of the OSH Act authorizes the Secretary of Labor to issue and adopt specific safety standards that improve the safety and health of workers (29 U.S.C. § 654(a)(2)). With this authority, the Secretary of Labor has issued specific safety standards in four general areas:
Maritime & Longshoring.
The vast majority of OSHA's inspection and enforcement activity takes place under the General Industry and Construction standards.
The General Industry standards are codified at 29 C.F.R. § 1910. They regulate a broad spectrum of health and safety topics, including among others workplace floors, stairs, ladders, scaffolding, fire prevention, fire safety, entrances, exits, moving platforms, ventilation, noise, non-iodizing radiation, many dangerous gases and chemicals, hazardous waste, personal safety gear, sanitation, medical services, cranes, helicopters, machinery, tools, welding, electrical systems and commercial diving.
The General Industry standards apply to nearly all employees. However, there are tailored rules for safety and health hazards in designated industries. For example, 29 C.F.R. § 1910 contains standards specifically addressing the safety and health hazards in pulp and paper mills, sawmills, bakeries, laundry operations, logging, telecommunications and electrical power generation. Also, the general standards do not apply if the machinery or work at issue is subject to specific standards contained in the Construction, Maritime & Longshoring or Agricultural standards (29 C.F.R. § 1910).
The Construction standards are codified at 29 C.F.R. § 1926. These standards apply to employers whose employees are engaged in construction work, which is defined as "work for construction, alteration, and/or repair, including painting and decorating" (29 C.F.R. § 1910.12(b)). The determination of whether the work at issue is "construction" can be fact intensive and unclear.
OSHA's safety standards can be further broken down by their degree of:
Generality. Both the General Industry and Construction standards contain broadly worded standards requiring employers to provide things such as safety training, personal protective equipment and machine guarding. For example, the Construction industry standards contain a general training standard that requires employees to provide training to "each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury" (29 C.F.R. § 1926.21(b)(2)).
Specificity. By contrast, there are standards that apply only to narrowly defined types of machinery, equipment or materials and impose detailed requirements about how to safely work with that machinery, equipment or material. As a general rule, if two standards could apply to a working condition, the more specific standard is the one that employers should follow.
To show a violation of a safety standard, OSHA must demonstrate that:
The cited standard applies to the condition at issue.
The employer failed to comply with the cited standard.
An employee had access to the unlawful condition or zone of danger.
The employer knew or should have known with the exercise of reasonable diligence of the existence of the unlawful condition.
See, for example, Secretary of Labor v. Conoco Phillips Bayway Refinery, 654 F.3d 472, 479 (3rd Cir. 2011); Secretary of Labor v. Shaw Areva Mox Services, LLC, 23 O.S.H. Cas. (BNA) 1821, 2012 O.S.H.D. (CCH) ¶ 33,178.
OSHA also bears the burden of proving that the proposed date for fixing the problem (also referred to as abatement) is reasonable (29 U.S.C. § 659(c)). Under some standards, OSHA is also required to prove that the proposed abatement methods are feasible and reasonable. For example, courts and the Occupational Safety and Health Review Commission (the Review Commission) have held that for the Secretary of Labor to prove a violation of OSHA's noise standard (which specifically references "feasible" means of compliance), she must demonstrate that a technologically feasible method of abatement exists.
In many cases, the most difficult element for OSHA to prove is that employees had access to the zone of danger created by the alleged OSHA violation. To carry that burden, OSHA must show that it is reasonably predictable, either because of the nature of the employee's job duties and work practices or otherwise (including inadvertent entry or contact), that employees have been, are or will be in the zone of danger.
An employer may be able to rebut allegations that its employees are exposed or have access to a hazard by demonstrating that employees have received safety training, are well supervised during any allegedly dangerous operations or both. It is also helpful to an employer's defense to present evidence of work practices and procedures that mitigate or eliminate the potential for employees' exposure to a hazardous condition during their work.
The OSH Act gives employees and their representatives the right to file complaints with OSHA regarding alleged safety violations or hazards present at an employer's worksite. According to Chapter 9 of OSHA's Field Operation Manual, Directive CPL 02-00-150 (the written guidance used by OSHA's compliance officers when conducting an inspection), there are two types of complaints:
A formal complaint is one made by a current employee or a representative of employees that:
Asserts that an imminent danger, a violation of the OSH Act or a violation of an OSHA standard exposes employees to a potential physical or health harm in the workplace.
Is reduced to writing or submitted on a Form OSHA 7.
Sets out the basis for the complaint with reasonable detail.
Is signed by at least one current employee or employee representative.
In most cases, the submission of a properly completed formal complaint will result in an OSHA inspection (see OSHA Inspections).
A non-formal complaint refers to any complaint that does not meet all of the requirements of a formal complaint. The most common type of non-formal complaints are those made by disgruntled former employees. When a non-formal complaint is submitted, OSHA will, in most cases, send a letter to the accused employer informing it of the allegations and requesting that the employer provide a response to the allegations in the non-formal complaint within five working days.
Section 11(c)(1) of the OSH Act prohibits retaliation against employees for filing, instituting or causing to be filed OSH Act proceedings, as well as retaliation against employees for testifying in OSH Act proceedings (29 U.S.C. § 660(c)(1)). For more information about retaliation generally, see Practice Note, Retaliation (www.practicallaw.com/5-501-1430).
The language of this section affords a broad range of protections to employees. Employees are protected from retaliation not only by their employer, but also by the employees' union or other third parties who may attempt to blacklist or otherwise negatively impact a complaining employee. Protection extends to former employees if the alleged retaliation took place while they were employed.
Retaliation is not limited to termination of employment, but can be any negative action that affects the employee's compensation or other terms and conditions of employment. Retaliation protections are triggered by a complaint to OSHA, a complaint submitted to the employee's employer or a complaint to other federal, state or local agencies that have authority over occupational safety and health matters.
If an employee files a complaint of retaliation under Section 11(c), an investigation will be conducted by OSHA (29 U.S.C. § 660(c)). In most cases, that investigation will be conducted by an investigator who handles exclusively retaliation complaints. To show that unlawful retaliation occurred, it must be proven that the employee's safety complaint (or other protected activity) was a substantial reason for the employer's adverse action. An employer that is considering taking adverse action against an employee who has submitted a safety complaint should be cautious and ensure that the justifications behind the adverse action are well supported and documented. Supportive documents will be crucial in defending against potential retaliation charges.
Employers with 11 or more employees, except for employers in certain industries (such as the retail sector), must record certain work-related injuries and illnesses that take place at their worksite.
OSHA's recordkeeping standards first require that the employer determine whether the injury or illness is work-related. An injury is presumed to be work-related if an event or exposure in the work environment is a discernible cause of the injury or illness. The work environment includes:
The establishment: the physical area where workers conduct business or perform services or operations.
Other locations where employees work or are present as a part of work.
The equipment, tools and materials that employees use during their work and the space they occupy.
Determining whether an injury or illness is work-related can be a very fact-intensive and complicated endeavor and it may be necessary to consult counsel.
An injury or illness must be recorded (in other words, is considered recordable) if it:
Results in any of the following:
days away from work;
restricted work or transfer to another job;
medical treatment beyond first aid;
loss of consciousness; or
a significant injury or illness diagnosed by a physician or other licensed health care professional.
There are three primary documents associated with the recording of workplace injuries and illnesses:
Log of Work-Related Injuries and Illnesses (Log) (OSHA Form 300).
Injury and Illness Incident Report (OSHA Form 301).
Annual Summary (OSHA Form 300A).
These three documents are packaged together in OSHA's Forms for Recording Work-Related Injuries and Illnesses.
The Log is used to classify each recordable injury and illness and contains:
name, except in recognized privacy cases (described below); and
The date of the injury or illness.
A brief description of the injury or illness.
Classification of the injury or illness (for example, medical treatment, lost days or restricted work).
The number of days away from work or on restricted duty and the type of injury or illness.
Recordable cases must be placed on the Log within seven days of their occurrence (29 C.F.R. § 1904.29(b)(3)). The employer is not permitted to put the employee's name on the Log if the injury or illness involves a recognized privacy case, where the injury or illness either:
Is to an intimate body part or reproductive system.
Results from a sexual assault.
Involves mental illness.
Is HIV, hepatitis or tuberculosis.
Is a needlestick or cut that involves contamination with blood or other infectious material.
Is another illness, if the employee voluntarily requests to have his name kept off the Log.
The employer should also use discretion in including the employee's job title and describing the nature of the injury or illness if the job title or description might enable others to identify the injured or ill employee (29 C.F.R. § 1904.29(b)(9)). A Log must be kept for each of the employer's establishments (see definition under Work-related). Note that an injury or illness does not automatically become covered under workers' compensation laws simply because it is included on the OSHA Injury and Illness Log.
The Injury and Illness Incident Report supplements the Log. The Injury and Illness Report contains more detailed information about each of the cases recorded on the Log. It includes information about:
The nature of the accident.
What the employee was doing at the time of the injury or onset of the illness.
The nature and extent of the injury or illness.
Treatment that was provided.
Like the Log of Work-Related Injuries and Illnesses, the Incident and Illness Report must be completed within seven days of the occurrence.
Injuries and illnesses are tracked on a calendar year basis, from January 1 to December 31. At the end of each year, employers must complete an Annual Summary of the injuries and illnesses at each of its establishments using OSHA Form 300A. The Annual Summary incorporates the information on the Log, including:
Total number of workplace fatalities.
Total number of cases with days away from work.
Other information required for the OSHA Form 300.
The Annual Summary must be signed and certified by an employer representative who can verify that the information contained in the summary is true and accurate. The Annual Summary must be posted in a conspicuous place at the workplace by February 1 of the following year and must remain in place until April 30.
To ensure that they are complying with the recordkeeping requirements, employers should have a policy in place that requires employees to report workplace injuries and sets out the procedure for doing so. The Log of Work-Related Injuries and Illnesses, Injury and Illness Incident Report and the Annual Summary must be kept for five years after the year to which they relate.
Not to be confused with the obligations to record certain injuries and illnesses, employers must verbally report to the nearest OSHA office any work-related fatality or accident that results in the hospitalization of three or more employees. "Hospitalization" means in-patient, overnight treatment. This verbal report must be made within eight hours of the incident. Even if a recordable injury does not immediately result in an employee's death or the hospitalization of three or more employees, if within 30 days of the incident an affected employee dies or three or more employees are hospitalized, the employer must report the incident within eight hours of learning of the development. (29 C.F.R. § 1904.39.)
OSHA inspections can occur for a variety of reasons, including:
Employee complaints and injuries.
For more information on OSHA inspections, see Practice Note, Handling an OSHA Inspection (www.practicallaw.com/8-502-3422).
The most common reason for an inspection is the submission of a complaint by an employee. Apart from employee complaints, OSHA will generally have sufficient cause to conduct an inspection when a significant injury or accident has occurred at the employer's facility. This is particularly true if the accident is one that triggers the employer's obligations to report the incident to OSHA.
Inspections can also occur under OSHA's site-specific targeting plan. OSHA develops a site-specific targeting plan each year to target industry sectors with historically high injury and illness rates. In developing the plan and the list of targeted employers, OSHA looks at the injury rates reported by the employer on its injury and illness logs, in particular, the rates of Days Away from Work, Restricted or Transferred (the DART rate) and Days Away from Work Injury and Illness (the DAFWII rate).
Finally, OSHA may select an employer for a visit based on a National or Local Emphasis Program. OSHA periodically develops Emphasis Programs to address what it deems particularly dangerous work practices, equipment, chemicals or materials. OSHA currently has National Emphasis Programs on lead, amputations, crystalline silica, chemical facilities process safety management, shipbreaking, combustible dust, primary metal industries, facilities that manufacture food flavorings containing diacetyl, nursing and residential care facilities, hexavlent chromium and injury and illness recordkeeping (see OSHA: OSHA's Active National and Special Emphasis Program Index).
OSHA has about 140 Regional or Local Emphasis Programs in place as well. Local Emphasis Programs (LEPs) are enforcement strategies designed and implemented at the Regional Office and/or Area Office levels. These programs are intended to address hazards or industries that pose a particular risk to workers in the Office's jurisdiction (both regional and local). The emphasis programs may be implemented by a single Area Office or at the Regional level (Regional Emphasis Programs) and applied to all of the Area Offices within the Region.
Often, LEPs will be accompanied by outreach intended to make employers in the area aware of the program and the hazards that the programs are designed to reduce or eliminate. This outreach may be in the form of informational mailings, training at local tradeshows or speeches at meetings of industry groups or labor organizations. OSHA provides a list of its Regional and Local Emphasis Programs. LEPs are generally only approved for a year, but may be renewed on a year-by-year basis.
OSHA's inspections must be conducted:
At reasonable times.
Within reasonable limits.
In a reasonable manner.
OSHA must have "administrative probable cause" to conduct an inspection of a private employer's worksite. Administrative probable cause is very different from the probable cause standard used in a criminal setting. In Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), the Supreme Court of the United States (the Supreme Court) characterized the administrative probable cause standard as follows:
"For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that reasonable legislative or administrative standards for conducting an...inspection are satisfied with respect to a particular [establishment]."
To ensure that the administrative probable cause standard is satisfied, the Supreme Court has held that an employer can demand that OSHA obtain a warrant before conducting an inspection. However, employers should be aware that the standard for obtaining a warrant is relatively low and that OSHA will likely obtain a warrant quickly.
Requiring the compliance officer to obtain a warrant may raise the compliance officer's suspicions or lead to additional scrutiny during the inspection. There are situations in which it may be appropriate to require OSHA to obtain a warrant (for example, if there has been a fatality and the employer has received significant OSHA citations for a comparable violation in the past). In these cases, there is potential for criminal prosecution of an employer and its agents. Before making the decision to demand a warrant, the employer should consult with legal counsel.
In most instances, it is appropriate to simply consent to an inspection. However, the employer should:
Attempt to limit the scope of the inspection to the complaint or alleged condition that prompted it.
Ask to see a copy of the complaint if the basis for the inspection is an employee complaint (but the employer does not have a right to know the identity of the employee who filed the complaint).
Attempt to reach an understanding with the compliance officer limiting the inspection to the item(s) contained in the complaint.
Even if the employer initially consents to the inspection, it retains the right to demand that OSHA get a warrant if, at some point, the inspection becomes overly broad or intrusive.
A typical OSHA inspection consists of four basic stages. For more information on the inspection process, see Chapter 3 of OSHA's Field Operation Manual, Directive CPL 02-00-150 and OSHA Inspections (OSHA 2098)
The OSHA inspection begins with an opening conference. The opening conference is a short meeting between the compliance officer and company representatives to discuss what the compliance officer intends to do during the inspection.
At this time, the employer should ask to see the compliance officer's credentials and attempt to gather as much information as possible about the inspection that the compliance officer intends to conduct. In particular, the employer should:
Ask what prompted the inspection, for example, whether it was because of an employee complaint or selection under an emphasis program.
Obtain information about the inspection, such as what areas and operations the compliance officer wants to inspect, what records the compliance officer seeks to review and whether photographs, videos or air samples will be taken.
The compliance officer's next step will likely be to request to see and review certain safety-related records. In general, the compliance officer is entitled to review any records or reports that are required to be created and kept by the OSH Act or the standards promulgated under it. The compliance officer will almost certainly ask to review the employer's Log of Work-Related Injuries and Illnesses, Injury and Illness Incident Report and Annual Summary.
OSHA also has the right to request other business records that may be related to health and safety, such as workers' compensation documents, internal safety audits and other work policies or rules. Employers should be cautious when asked by OSHA to produce personally identifiable medical information of employees. When this sort of request is made, the employer should consult counsel, as certain special procedures under the OSHA standards may need to be followed and/or the employer may need to obtain an agreement to release relevant information from the affected employee.
The compliance officer will next conduct an inspection of the areas in which there may be a safety violation. The employer has the right to have a company representative accompany the compliance officer at all times during the inspection. Employees also have the right to have an employee representative accompany the compliance officer. If the employer is unionized, a union representative will accompany the compliance officer.
The company representative should mirror the compliance officer throughout the walkthrough, taking notes about everything the compliance officer asks and does, taking similar photographs or video, measurements and the like. The compliance officer may also ask to conduct interviews with employees. OSHA has the right to conduct interviews with hourly, non-supervisory employees in private. If the compliance officer wishes to interview supervisory or management personnel, the employer has the right to have a company representative or counsel present during this sort of interview.
At the conclusion of the inspection, the compliance officer will conduct a closing conference with the employer. The purpose of this conference is to inform the employer of:
What was found during the course of the inspection.
What citations may be issued as a result of the inspection.
How the compliance officer believes the employer can correct any allegedly unlawful conditions.
During this closing conference, the employer's primary focus should be to ask questions and listen, rather than to argue with the compliance officer about the facts or the propriety of any citations. The employer should also ask when it can expect to receive the citations and be certain to clarify the address to which they should be sent. For more information on OSHA inspections, see Practice Note, Handling an OSHA Inspection (www.practicallaw.com/8-502-3422).
OSHA citations can be classified in one of the following five ways (29 U.S.C. § 666).
Violations that do not present a risk of death or serious physical injury are classified as "Other than Serious" and carry a maximum penalty of $7,000 for each citation.
Violations that create a substantial probability of death or serious physical harm are classified as "Serious." Serious citations carry a maximum penalty of $7,000.
An employer can be cited for a "Repeat" violation if it has been cited under the same OSHA standard or for a similar condition within the preceding three years. The maximum penalty for a repeat citation goes up ten-fold to $70,000.
A "Willful" citation can be issued if OSHA believes that the employer has intentionally violated the requirements of a standard, or shows plain indifference to the standard's requirements. Willful citations are most often issued in cases where there has been a death or serious physical injury and the employer has been involved in a similar accident or injury in the past. Willful citations have a maximum penalty of $70,000 and a minimum of $5,000. Willful violations that involve an employee death can trigger additional criminal penalties up to $10,000 and six months in prison.
If an employer is cited for a violation and that citation becomes final, the employer can be cited for "Failure to Abate" if it has not corrected the cited hazard. The penalty for a Failure to Abate citation can be up to $7,000 for each day that the unlawful condition remains uncorrected.
OSHA citations policies allow for additional nuance in enforcement. Violations can be either de minimis or "egregious." For more information on violations, see Chapter 4 of OSHA's Field Operation Manual, Directive CPL 02-00-150. OSHA can also issue citations for a single alleged violation to multiple employers using its Multi-Employer Citation Policy, CPL 2-0.124 (see Multi-Employer Citation Policy).
If a violation has no direct or immediate relationship to the safety and health of employees, OSHA may classify the violation as de minimis. In this situation, no citation is issued, but the employer receives written notice of the violation. (29 U.S.C. § 658(a).)
Where OSHA believes that an employer has acted in bad faith, it may employ its egregious citation policy. Most commonly, this citation policy accompanies willful violations. Under this policy, the agency can cite the employer for each particular violation and each employee exposed to a violation. Citation under the egregious policy can dramatically increase the level of penalties.
In situations where there a number of employers operating at a worksite, OSHA can issue citations to more than one of those employers. This is true even if there is only a single alleged violation of OSHA's standards. In other words, two or more employers can be cited for the same hazardous condition.
In determining which employer(s) should be cited for alleged violations, OSHA will look at both:
Which employer(s) was in control of the employees and/or the work being performed.
Which employer(s) had employees that were exposed to the allegedly hazardous condition.
Employers that control the work being performed, dictate the day-to-day duties of the employees performing the work, or that have the ability to correct the alleged dangerous condition will generally be subject to citation. Employers that do not control the employees, the work, or the alleged hazard and that do not have employees exposed to danger will generally not be liable for an OSHA citation.
There is an exception to this general rule when an employer is acting as a General Contractor or Construction Manager, a role in which the employer is expected to exercise general control over work and safety for the entire jobsite or work location. OSHA and the federal courts have held that employers operating in these capacities can legally be subject to citation even though the employer did not create the hazard or have any of employees exposed to it. See Solis v. Summit Contractors, Inc., 558 F.3d 815 (8th Cir. 2009); Secretary of Labor v. Summit Contractors, Inc., 23 O.S.H. Cas. (BNA) 1196, 2010 O.S.H.D. (CCH) ¶ 33,079.
After the completion of an inspection, OSHA is required to be "reasonably prompt" in issuing citations for any violations that it believes were present. Under Section 9(c) of the OSH Act, OSHA is prohibited from issuing a citation for any violation that occurred or was present more than six months earlier (29 U.S.C. § 658(c)).
Once the employer receives the citation, it has 15 working days to determine whether to contest the alleged violations. The notice of contest is simply a letter or other written communication to the Area Director of the OSHA office that issued the citations informing OSHA of the elements of the citation (for example, the allegations of a violation, the proposed penalty or the abatement date) that the employer seeks to contest. (29 C.F.R. § 1903.17.)
The notice of contest should also prominently display the inspection number. If the employer fails to file a notice of contest within the 15 days, the citations become a final order of the Review Commission and are difficult to overturn. For a sample, see Standard Document, Notice of Contest of OSHA Citation (www.practicallaw.com/6-509-2831).
During the 15-day period between the employer's receipt of the citations and the deadline for filing a notice of contest, employers have the opportunity to meet with the OSHA Area Director and attempt to informally settle the citations (29 C.F.R. § 1903.20). This is commonly referred to as an informal conference. An informal conference is much like any other settlement negotiation. The employer can attempt to negotiate a settlement that vacates the citation, reduces the penalty, changes the abatement date or provides other benefits. OSHA does not allow piecemeal settlement of citations at an informal conference. In other words, an employer cannot settle one citation at an informal conference and seek to contest the other in administrative proceedings. If settlements occur at this stage, all citations must be resolved at the informal conference.
It is highly recommended that employers who have received OSHA citations schedule and participate in an informal conference. Even if settlement is unlikely, the informal conference gives the employer the opportunity to meet the OSHA Area Director to create a relationship and ensure that OSHA knows the employer takes safety seriously. Of equal importance, the informal conference is a good way for an employer to gather information about the basis for OSHA's claim that violations have occurred. This information can be very helpful in defending the claims later in the administrative hearing process.
If settlement cannot be reached with the OSHA Area Office and a notice of contest is filed, the OSHA Area Director will forward the inspection file to the Regional Solicitor's Office (29 C.F.R. § 2200.33). The Regional Solicitor is the legal representative of the Department of Labor who will be responsible for representing OSHA in the administrative proceedings and at a hearing on the citations. (29 U.S.C. § 659(c).) Once the file is forwarded, the Solicitor will file a complaint to enforce the citations with the Review Commission and the case will be assigned to an Administrative Law Judge (ALJ) for discovery proceedings and a hearing (5 U.S.C. § 554).
The opportunity for settlement does not disappear simply because of the initiation of an administrative action. It is always possible to settle the case with the Solicitor at any point in the administrative proceedings. (29 C.F.R. § 2200.100.) In fact, settling with the Solicitor offers a broader range of settlement options because:
Settlement can be piecemeal; in other words, the employer can agree to settle some citations or items and continue to contest others.
The Solicitor generally has more discretion to vacate or modify the citations.
The Solicitor has greater leeway to include "exculpatory language" in settlement documents.
At the hearing, the Solicitor and OSHA will bear the burden of establishing, by a preponderance of evidence, each of the elements of the alleged citation. After the hearing, the ALJ will issue a decision concerning the citations.
If the employer or OSHA disagree with the ALJ's decision, they have the right to request review by the Review Commission by filing a Petition for Discretionary Review either:
With the ALJ within ten days after the day the ALJ transmits a copy of the decision to the parties.
With the Executive Secretary of the Review Commission within 20 days of the date of the docketing of the decision.
The Review Commission is not required to grant review and, if it chooses not to, the ALJ's decision will become a final order of the Review Commission. (29 C.F.R. § 2200.91.) Final orders of the Review Commission can then be appealed to the Federal Circuit Court of Appeals in the circuit where the violation occurred, the circuit in which the employer has its principal place of business or the Court of Appeals for the DC Circuit.
The changeover to the Obama administration brought an increasing focus on workplace safety and health. For example, OSHA received a significant increase in funding to hire additional OSHA inspectors and to step-up enforcement proceedings. See OSHA: 2010 Enforcement Summary.
In addition, there is a growing body of legislation in Congress that would seek to expand the scope and penalties associated with safety and health violations. Greater emphasis on enforcement means a greater need for employers to be aware of their responsibilities under the OSH Act, take action to ensure compliance and consult counsel where appropriate.
For more information on specific health and safety topics, see OSHA's online coverage of, for example: