OSHA – Oh Sh . . . oot

You are showing a colleague the photographs from your vacation to Big Sky Country, still  relishing in the sounds of silence and the intoxicating scent of ponderosa pine you left just  yesterday, and in walks an OSHA representative welcoming you back with a Citation and  Notification of Penalty. 

 The story, however, does not start or end there. By this point your facility or your jobsite,  or both, have been inspected on at least one occasion by OSHA. This could have been a routine  inspection, or one triggered by an accident. It is wise to learn about your obligations under OSHA  before an inspection and before receiving a Citation and Notification of Penalty because the price  you pay thereafter may be significant. That price can be the penalty itself, the legal costs to contest  a Notification of Penalty, increased worker’s compensation costs, and even losing future bid  opportunities because of required OSHA incident disclosure.  

 The OSHA of today is a far cry from its origins. OSHA was passed by Congress in 1970  and became law in 1971 after an increase in accidents and deaths spanning five decades, starting  with World War II. Manufacturing during the war was focused on defeating Hitler and keeping  wages at pace with extraordinary inflation, sometimes sacrificing health and safety for the good of  the cause. After World War II the country saw dramatic growth during its chemical revolution  where new chemicals were created and deployed in manufacturing and agriculture without a full  understanding of their impacts. The environmental movement of the 1960s, seeking to rally others  behind their cause, enlisted the workforce and unions to tip the scale against employers, and tip, it  did. During a two year legislative debate on workplace safety, pro-business legislators sought to  create an advisory OSHA agency, not one which had the power to regulate. Those legislators also  battled against inclusion of what we now know as the “general duty” clause. Some battles were  won, and others were lost. What remained was a patchwork of ideals that a new executive agency  would implement. In the decades since this agency has seemingly expanded its-own power, and  seeks to enforce an ever expanding body of its unilateral pronouncements. This body of  pronouncements emanate from the very “general duty” clause pro-business advocates fought back  against. While that clause is now the law, executive agency edict can fortunately be checked  through knowledge and challenge where appropriate.  

Contractors should know that they have a general duty to provide a workplace free from  recognized hazards likely to cause death or serious physical harm. That workplace includes not  only a contractor’s own facilities, but the jobsite as well. The contractor must also endeavor to  ensure that its employees perform daily activities in accordance with applicable safety standards,  of which there are many. There are general standards, and also those which depend upon the  nature of work performed (e.g. illumination, lead, hazmat, electrical, fire protection, welding,  confined space, fall protection, chemical). These elaborate standards are set forth initially in the  United States Code and the Code of Federal Regulations.1 OSHA then issues interpretation letters  explaining those requirements and how they may apply to a particular circumstance.2  

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 It is critical that contractors are intimately familiar with applicable standards, and that  contractors develop an ongoing safety training program. This program should be conducted both  by internal and external sources. The program can and should consist, in part, of informal training,  such as project planning meetings and task specific training by supervisors on a day to day basis.  The program should also consist of formal training via internal seminars or outsourced seminars.  All training should be documented contemporaneously (who, what, when) because there is little  time to scramble for details and documentation after an accident.  

 Although contractors have a duty to implement safety training, they are not legal guarantors  of safety. The mere existence of an accident does not mean that a contractor has failed in its  general duty.3 Since the contractor is required to address only recognized hazards, an unanticipated  unusual event does not trigger a violation of the general duty.4 This is particularly true where  OSHA claims that the incident is “serious,” as opposed to “other than serious.” A serious violation  exists only where OSHA can prove there is a substantial probability of death or serious physical  harm and that the contractor knew about it, or that it should have known about it with the exercise  of reasonable diligence.5 Even where an event could have been anticipated, OSHA must still prove  that feasible measures would have materially reduced the likelihood of injury.6  

 Against this backdrop we recircle to our story of the returning vacationer. Following the  accident or other inspection the OHSA Compliance Safety and Health Officer would have  submitted an inspection report to the Area Director for review. While this secondary review is  designed to safeguard contractors from overzealous prosecution by the Officer, the reality is that  the Officer carries a great deal of influence with the Area Director. If the Area Director concludes  that the employer has violated a rule, a Citation will be issued, and it may be combined with a  Notification of Penalty.7 OSHA is required to give the contractor a reasonable time within which  to cure (abate) the violation, though that will not eliminate the penalty if one is assessed.8 The  abatement period specified by OSHA is often unreasonable, but contractors may petition for  

3 Secretary of Labor, Complainant v. Intercontinental Terminals Company and Erbauer Construction Corporation,  1980 WL 10125, at *8 (Mar. 20, 1980) (stating it is well settled that the happening of an accident, in and of itself, is  not proof of a violation of the general duty clause, further opinion testimony, even that of an expert, is not  conclusive and it is up to the trier of fact to determine what weight, if any, will be given to the testimony). 4 Champlin Petroleum Co. v. Occupational Safety and Health Review Commission, 593 F.2d 637 (5th Cir. 1979)  (stating that the general duty obligation is not designed to impose absolute liability or respondeat superior liability  for employees’ negligence, rather its requires the employer to eliminate feasibly preventable hazards. It is the  Secretary’s burden to show that demonstrably feasible measures would materially reduce the likelihood that such  injury would have occurred).    

5 Secretary of Labor, Complainant v. H.C. Smith Construction Company, 1980 WL 10503, at *10 (Nov. 13, 1980)  (finding that the occurrence of a death is not enough to result in a serious violation, the evidence must show that if a  violation occurs, there is a substantial probability that death or serious physical harm could result therefrom).   Western Waterproofing Co., Inc. v. Marshall, 576 F.2d 139, 143 (8th Cir. 1978) (stating that failure to comply with  a safety standard under OSHA is willful if done knowingly and purposely by an employer who either intentionally  disregards the standard or is indifferent to its requirement); Brennan v. Occupational Safety and Health Review  Com’n, 501 F.2d 1196, 1199 (7th Cir. 1974) (finding a serious violation to exist where there is a probability that  death or serious physical harm could result from an existing condition or practice adopted unless employer could not  with reasonable diligence know of the violation). 

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modification of the abatement date. The petition must include a number of details, such as steps  taken to abate the issue by that point, the additional time needed, interim steps implemented to  safeguard employees during the abatement period, and a certification that the petition for  modification has been posted in a manner visible to the contractor’s employees.9 This petition  must be timely filed or the contractor will have waived its right to seek modification.  

 The Contractor may also wish to contest the Citation in whole or in part. This may be  necessary for any of the reasons outlined in the opening paragraphs of this article. It may also be  prudent because an uncontested Citation may lead to more frequent OSHA inspections and  increased fines in the event of future violations. A Citation may be contested in only two ways:  (1) an informal conference and (2) a formal notice of contest.10 A formal notice of contest must  be initiated with the Assistant Regional Director within fifteen business days of the Citation. The  informal conference does not have any impact on that deadline, so if an informal resolution is to  be reached, the contractor must initiate the informal conference quickly. The contractor has the  right to and should be represented by counsel during both an informal conference and the formal  contest proceeding.  

 The contest proceeding is a formal legal process before the OSHA Review Commission,  with a presiding Administrative Law Judge. OSHA will be represented by legal counsel  throughout the proceeding. These proceedings are governed by complex rules of procedure and  standards.11 At conclusion of that proceeding, the Administrative Law Judge will prepare a written  decision which may be appealed to the appropriate federal circuit court.12  

In 1776 Adam Smith published his great work The Wealth of Nations wherein he espoused  the principal of the “Invisible Hand”; a laissez-faire, hands-off policy where government would  let the competitive market self-regulate. Some might say that what Adam Smith was to the  Invisible Hand, OSHA is to the heavy hand. While OSHA is often well-intended, it provides a  terrible trap for the unwary. You may avoid this trap by learning now about your obligations and  defenses under OSHA, because with swift and appropriate action, contractors can position  themselves to avoid, defeat, or modify Citations and penalties. Don’t be the contractor who  exclaims OSHA-Oh Sh…oot! 

Justin R. Zinzow, a Florida Bar Board Certified Construction Specialist, is one of the construction  industry attorneys at Zinzow Law, LLC. For more information, or to inquire about a free seminar  on this or other legal topics, email [email protected], or visit www.zinzowlaw.com.