Editor’s Note – Mark Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
As a result of a survey the Occupational Safety and Health Administration (OSHA) conducted in 2002 in which it reviewed 2001 injury and illness data from 93,000 employees, OSHA has sent written correspondence to approximately 14,200 employers informing them that they have injury and illness rates above the national average of 2.8 injuries for every 100 full-time employees. It is the intent of OSHA’s correspondence to inform these employers that they have elevated injury and illness rates and to recommend that they take specific action. It should be noted that construction industry employers are also receiving these letters, the first time this industry has been included in such a notification effort.
The correspondence recommends that these employers:
• Consider hiring outside safety and health consultants;
• Discuss their safety and health programs with their insurance carriers; or
• Contact their state consultation service for assistance.
As a responsible employer, the employer should not disregard this correspondence. While it does not constitute any type of a citation, an employer who disregards it could face consequences in a subsequent OSHA inspection if the employer took no action to respond. For example, the agency could consider a failure to take any affirmative action as a sign of a lack of good faith and cooperation that could translate into enhanced penalties with subsequent citations.
The agency’s recent action follows on the heels of another enforcement agenda known as Site Specific Targeting in which any employer with a lost workday injury or illness rate of 8.0 or above will receive an on-site inspection. These inspections are ongoing and frequently involve a “wall-to-wall” inspection of the workplace, including an ergonomic evaluation. Any employer who receives a visit from OSHA under this initiative should be prepared to manage the inspection and to demonstrate that the employer has the requisite safety and health programs, including:
• Required OSHA logs and supporting documentation;
• Lockout/Tagout;
• Hazard communication (right-to-know);
• Personal protective employment assessment and equipment;
• Forklift, truck, and other powered industrial trucks.
Due Diligence Defeats Citations
A recent decision from the Occupational Safety and Health Review Commission should give encouragement to employers who are making a determined effort to develop and enforce compliance programs even if the employer’s program has some deficiencies that may result in violations.
In one case, the commission considered citations issued to a roofing company on two separate occasions at different job sites for the same hazard (lack of fall and eye protection). The administrative law judge upheld the citations over the employer’s argument that it had no constructive knowledge of the violations. In order to prove a violation, OSHA must show that the employer had “constructive knowledge” of the violation; that is, the employer failed to exercise reasonable diligence to discover the violation and to take action to prevent it from occurring.
In this case, the commission reversed the administrative law judge and found that the employer had created work rules that required employees to use face protection and eye protection. Even though the employer’s work rule requiring the use of fall protection did not specifically address the working conditions involved in roofing work or the kind of equipment that employees should use under varying conditions, the employer’s program was adequate since it addressed the requirements of the OSHA regulation that was cited.
The other key element that saved the day for the employer was the fact that the employer had a system of progressive discipline for employees who violated the employer’s safety and health programs. In addition, the commission found that the employer did in fact discipline employees, including the same employees who were responsible for the violations in the citations.
Finally, the commission relied upon evidence that the employer had an aggressive program for on-site visits by supervisors to observe compliance and to take corrective action, if necessary. The employer’s safety manager and director each made frequent job site visits to many locations on a daily basis, including unannounced visits.
Based upon the foregoing factors, the commission vacated the citations because the employer had no constructive knowledge that there were violations since its comprehensive program did not reveal that any further action should have been taken.
In order to achieve a similar result, employers must establish the following elements:
• Develop written safety and health programs;
• Establish a progressive discipline system for violations and enforce it; and
• Conduct frequent and comprehensive site inspections to identify non-compliance.
Labor and the Law - June 2003 Render