Mishandling Occupational Safety and Health Administration disputes could result in your business operations coming to a grinding halt. Penalties can include fines and civil liability, and put your company’s reputation jeopardy.
Gerlach Employment Law helps employers facing OSHA compliance issues. We help defend against OSHA claims, challenge OSHA citations, guide clients through OSHA inspections, and counsel clients about potential risks
Types of Violations
1. Willfull 2. Serious 3. Repeated 4. Other-than-Serious
- Fall Protection – General Requirements (1926.501): 5,295 violations
- Respiratory Protection (1910.134): 2,527
- Ladders (1926.1053): 2,026
- Scaffolding (1926.451): 1,948
- Hazard Communication (1910.1200): 1,947
- Lockout/Tagout (1910.147): 1,698
- Fall Protection – Training Requirements (1926.503): 1,666
- Personal Protective and Lifesaving Equipment – Eye and Face Protection (1926.102): 1,452
- Powered Industrial Trucks (1910.178): 1,420
- Machine Guarding (1910.212): 1,113
Not only do employment and labor laws change regularly, but how long-established laws are enforced can change as well. When it comes to evaluating complex HR issues, Attorney Gregg Gerlach brings expertise on Florida laws, government agency actions, and federal laws to each client case he receives.
- If an established work rule that the employee was trained to follow would have prevented the violation, and the violation was unpreventable, you may be able to prove misconduct. You will need to show that the rule has been enforced and any previous violations are disciplined and documented.
Impossibility/Infeasibility of Compliance:
- If compliance with the safety standard would prevent workers from completing their task, and the employer took steps to protect employees, then this defense may apply. It must be clear how the employer may be recognizing potential hazards and reducing the possibility of harm.
Employer Had No Exposure:
- When an employee may claims that they are experiencing a condition based on being exposed in their workplace, OHA must prove that the employer directly exposed or had access to the item that allegedly cause their condition.
Equipment Was Not in Use:
- If the equipment responsible for the hazard, like a saw or ladder, was marked as not in use, in repair, or stored out of service, then employers may use this as a defense.
Not in Scope of Employment:
- With documentation of employee duties and clarification of prohibited conduct, employers may be able to show that the incident is outside the scope of employment.
- Responsibility may be assigned based on the employer’s role in the violation. Employers could be held responsible for creating, exposing, correcting and controlling. Whether you are the host employer or a subcontractor can make a big difference in upholding the citation.
No Risk to Employee
- In some cases, employers may provide documentations showing that no risk of immediate danger existed. OSHA must prove how the violation endangers workers.
Proof of Isolated Event:
- Employers may show that there was a work rule that could prevent the violation, that the rule was communicated, that they were monitoring for violations, and that there was a way to enforce rules when violations were discovered.
Under Section 8(a) of the Occupational Safety and Health Act, OSHA requires inspections to be conducted in a reasonable manner, at reasonable times, and conducted within reasonable limits.
- Preserve productivity or profitability
- Avoid lawsuits related to oversights
- Avoid regulatory violations
- Find areas where HR standard practices need to be created
- Ensure compliance accounted for in processes and procedures
- Reduce risk of fines, business interruptions or permanent shutdowns
- Assess records and payroll
- Expertise regarding employment practice liability coverage insurance can and can’t cover
- Evaluate recruiting, operational policies, retention, compensation, benefits, and performance management
- Assess employee satisfaction
- Analyze internal grievances filed, legal complaints, absenteeism
- Manage HR liability risk
Common HR Issues
Some businesses encounter issues related to record keeping errors, such as missing personnel information, inaccurate time records, and I-9 mistakes. Other companies face legal issues related to policies and procedures, such as not accounting for state and federal protections, not providing adequate disability accommodations, inhibiting pregnancy leave, or not properly enforcing attendance policies. One common problem addressed in employment law is classifying employees incorrectly. Keeping up with legislation is an important part of protecting your interests. You are responsible for everything from leave policies to posting up-to-date federal and state labor and employment law posters.
What can employers do to prepare for challenging OSHA violations?
Good record keeping and documented employee and safety information can protect your company from oversights.
What types of issues should be documented?
Disciplinary actions, completed safety training, written company policies, site-specific documentation, employee handbooks and cases of employee misconduct.
Are OSHA citations permanent and unalterable?
In certain cases, citations may be vacated, reclassified or modified by the Occupational Safety and Health Review Commission. The penalties may also be reduced.
How soon must I file a Notice of Intent to Contest?
Employers have 15 days after the penalty notification to submit.
What are the potential risks of violating OSHA standards?
Violating OSHA standards may leave employees susceptible to harm, may result in damage to your equipment and property, and leave you responsible for collateral costs, fines, exposure to civil liability and reputation damage.