RESPONDING TO OSHA INSPECTIONS AND CITATIONS

 

By

 

J. Steve Barnett

 

©2001 Connell Foley LLP

I. Overview


A. Operation of OSHA.

The Occupational Safety and Health Act of 1970 (OSH Act) was signed into law December 29, 1970. OSHA opened its doors for business on April 28, 1971 and recently celebrated its 30th anniversary. OSHA's first standards were promulgated May 29, 1971.

Any state may submit a state OSHA plan, which the federal Secretary of Labor shall approve if it is at least as effective as OSHA’s rules. Approved state OSHA plans receive 50% federal funding. New Jersey's State Plan was withdrawn April 1, 1975, and, since then, enforcement in New Jersey has been by federal OSHA. However. the New Jersey Department of Labor, Division of Public Safety and Occupational Safety and Health, is responsible for employees of New Jersey State and its political subdivisions, and it also provides consultation services to public and private employers free of charge. Rules can be found at N.J.A.C. 12:100 et seq.

A useful tool available on OSHA’s web site is the Field Inspection Reference Manual (FIRM), which is used by OSHA’s Compliance Safety and Health Officers (CSHO’s) to prepare for and conduct inspections, prepare citations, and assess penalties.

In light of its broad remedial purpose, the OSH Act and accompanying regulations should be liberally construed to afford the broadest possible protection to workers.

B. Applicability.

The OSH Act applies to employers and employees. Employer means a person engaged in a business affecting interstate commerce but does not include federal or state governments.

OSHA’s authority can extend beyond employer-employee relationships. For example, OSHA’s asbestos standard (29 C.F.R. 1910.1001(j)(2)(ii)) imposes requirements on "building and facility owners." However, that provision has been held to cover only housing that is a condition of employment and not housing that is work-related but not a condition of employment.

OSHA has broad enforcement power at multi-employer worksites - typically construction sites. Creating, exposing, correcting and controlling employers are all obligated to meet OSHA requirements regardless of which employers’ employees are at risk. Directive CPL 2-0.124, "Multi-Employer Citation Policy," December 10, 1999.

Applicability of the OSH Act is subject to the annual Appropriations Act passed by Congress and signed by the President, which funds federal government agencies, including OSHA. The Appropriations Act exempts certain employers from some or all OSHA enforcement activities.

OSHA inspections and citations also affect the liability of property owners, contractors, engineers, architects, and others as determined in private litigation. See, e.g., Carvalho v. Toll Bros. And Developers, 143 N.J. 565 (1996) (engineer had common law tort duty for construction site health and safety); Alloway v. Bradlees, 57 N.J. 221 (1999) (general contractor owed duty to subcontractor's employee; OSHA regulations could be considered in determining duty and breach of duty); Slack v. Whalen, 327 N.J. Super. 186 (App. Div. 2000) (property owner had no legal duty to contractor's employee where risk of injury was not reasonably foreseeable and no relationship implicating safety existed between owners and employee; mere fact that OSHA regulations may have been violated did not create legal duty of property owners).

C. Rules and Requirements Pursuant to the OSH Act.

1. General Duty Clause.

The OSH Act imposes on employers a duty to provide a safe and healthy place of employment. This is popularly called the "General Duty Clause" of the OSH Act, or § 5(a)(1):

"Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause, death or serious physical harm to his employees."

 

The General Duty Clause may only be used by OSHA CSHO’s when no standard exists. Its use depends on the philosophy of the current Administration. It may be used only for "known" and "serious" hazards. 5(a)(1) does not impose strict liability on employer, but rather the employer must eliminate "foreseeable" and "preventable" hazards. OSHA must demonstrate the feasibility and utility of preventive measures. Testimony as to non-feasible alternative safety precautions is impermissible. Employee misconduct, as well as employer’s good faith including excellent safety and health programs, are defenses to a 5(a)(1) citation. It is not necessary to show an accident occurred, but only that the condition is likely to cause death or serious injury.

2. Health and Safety Standards.

OSH Act § 5(b)(1) requires that employers comply with OSHA’s safety and health rules. § 6 of the OSH Act creates the framework through which OSHA promulgates federal occupational safety and health regulations. For its first two years of existence, OSHA was authorized to promulgate as rules any existing national consensus standard and any established federal standard.

Currently, in order to promulgate rules, OSHA proposes rules in the Federal Register and allows interested persons to comment, including hearings. Often, OSHA’s proposed rules are based on Criteria Documents prepared by NIOSH. Rule promulgation is subject to Due Process requirements and requirements of the federal Administrative Procedure Act, 5 U.S.C.A. § 551 et seq.

OSH Act Section 6(c)(1) authorizes OSHA to establish an Emergency Temporary Standard when employees are exposed to "grave danger" and such ETS is necessary to protect employees. An ETS is effective immediately upon publication in the Federal Register, and can remain in place for six (6) months.

3. Other OSH Act Provisions.

Section 8 of the OSH Act authorizes OSHA to inspect and investigate workplaces without delay and at reasonable times. Also in § 8 are employers’ record keeping requirements.

Section 9 requires that, when a violation is found, the CSHO shall issue a citation with reasonable promptness. No citation may be issued after the expiration of 6 months following the occurrence of any alleged violation. The citation shall be in writing and fix an abatement period. Citations must be prominently posted at or near the place of violation. Notices of de minimis violation in lieu of a citation are authorized.

Section 10 outlines enforcement procedures. The employer has fifteen (15) working days to notify OSHA that he/she wishes to contest the citation or proposed penalty.

Section 11 provides for judicial review. Section 11(c) also contains important provisions prohibiting discrimination against any employee because such employee has filed an OSHA complaint or testified at an OSHA hearing.

Section 13 authorizes OSHA (and any employee if OSHA fails to act) to seek relief through the United States District Courts to restrain conditions that could reasonably be expected to cause death or serious physical harm.

Section 17 specifies penalties, both civil and criminal. Willfull or repeat violations are fined up to $70,000, but not less than $25,000 for each serious willfull, and not less than $5,000 for each non-serious willful violation. Serious violations: up to $7,000). § 5(a)(1), General Duty Clause, violations: up $7,000). Failure to correct willful or repeat violation: up to $7,000 per day). Willfull that caused death: up to $10,000 and/or six months imprisonment. Giving advance notice of inspection: up to $1,000 and/or six months imprisonment. False statements to CSHO’s: up to $10,000 and/or six months imprisonment. Violation of posting requirements: up to $7,000. 29 U.S.C.A. § 666.

4. State Plans.

Section 18 addresses State OSHA plans. Twenty-six states have state plans.

OSHA may preempt state laws and rules outside approved state plans. New Jersey Asbestos Control and Licensing Act and regulations were preempted by OSHA’s 1972 asbestos standard. The OSH Act preempted the New Jersey Worker and Community Right to Know Act. The Federal Hazard Communication Standard has preempted state hazard disclosure laws.

D. Criminal Penalties for Occupational Safety and Health Violations.

Section 666 of the OSH Act authorizes criminal penalties for employers and employees. It has been held that the double jeopardy clause does not forbid a civil penalty following criminal punishment for the same offense under the OSH Act.

Criminal charges are not heard before the OSHRC, but rather in United States District Court. OSHA criminal penalties are subject to a five-year statute of limitations, there is a right to a jury trial, criminal charges cannot be based on OSH Act 5(a)(1), and the rule violation must be willful and serious. Criminal evidentiary rules apply.

Employers and employees may be subject to State criminal penalties in addition to OSH Act criminal penalties. Several state courts have held that the OSH Act does not preempt state criminal law.

Title 18 of the United States Code punishes criminal offenses and is generally applicable to a wide array of activities, e.g., aiding and abetting, conspiracy, and making false statements.

II. The Inspection

A. Preparation.

The employer should have a plan, including designated personnel, for responding to incidents and inspections. This should include contingencies for after-hours response, access to Material Safety Data Sheets, written programs and records, and availability of sampling and recording supplies for evidence collection.

B. Presenting Credentials.

The CSHO, and all who accompany him or her, must have proper identification, which is his or her OSHA CSHO badge, and must also have any necessary security clearance. The CSHO may be accompanied by experts or outside consultants.

The U.S. Supreme Court has affirmed that warrantless searches by OSHA would be unconstitutional. However, OSHA may obtain a warrant ex parte and therefore refusing OSHA entry due to lack of a warrant may not be necessary in most cases.

C. Opening Conference, Evidence Collection and Closing Conference.

1. Type of Inspection.

It is important to determine whether the inspection is programmed, response to complaint, referral, news item or other. This will help define the scope of the inspection. The CSHO will provide a copy of the complaint, if applicable, retyped and/or redacted to shield identity of the complainant. The CSHO will usually suggest one opening conference to include all employers and employees; however, upon objection, separate opening conferences will be held.

2. Scope of Inspection.

If the inspection is a programmed inspection, the employer should expect OSHA to conduct a comprehensive inspection of the entire facility.

If the inspection is an unprogrammed inspection (complaint, referral, fatality/catastrophe, etc.) the scope may be less than wall-to-wall. The Fourth Amendment of the Constitution, the Administrative Procedure Act, and OSH Act restrictions of particularity and reasonableness apply. The scope of the inspection must bear an appropriate relationship to the violation alleged in the complaint. OSHA normally may not conduct a wall-to-wall inspection based only on an employee complaint. The CSHO must handle classified and trade secret information properly to limit access to the minimum needed for compliance activities.

Videotaping by OSHA has been held a reasonable investigative tool. It is most often used in situations involving fatality/catastrophe, imminent danger, or ergonomics. Employees may be videotaped and recorded only with their consent. Side-by-side videotaping should be considered. Videotape will be subject to rules of discovery and evidence in subsequent legal proceedings.

3. Consent, Plain View, Open Field, Exigent Circumstances.

The inspection scope may be broadened by consent, third-party consent, plain view, open field, or exigent circumstances. Consent need not be explicit, and failure to object to the inspection will be considered a waiver of the employer's right to obtain a warrant. The CSHO does not have to advise of the option to refuse entry. Consent can be given by any competent management official. On multi-employer work-sites, such as construction sites, consent can be given by a contractor or subcontractor.

The CSHO may issue a citation based on information viewed or obtained in plain view or from a public place. Employers should be prudent to ensure inspections are limited to their authorized scope.

4. Employer's Options In Challenging Scope and/or Warrant.

Employer’s options are limited in challenging the inspection scope.

Option I. Allow the inspection and thereafter petition a court to limit the scope, quash the warrant, and/or prohibit further enforcement by OSHA. Most courts have required the employer to first exhaust all remedies before the OSHRC.

Option II. Refuse the inspection and seek to quash or defend an action for contempt. Employer thereby risks fines and costs in contempt proceedings.

Option III (most common). Challenge scope in the course of contest proceedings before the Occupational Safety and Health Review Commission (OSHRC). The OSHRC has the authority to determine whether a warrant is valid. The employer has the burden of proof in showing that a warrant was improperly issued.

 

 

 

5. Employee Interviews.

 

An employee representative must be allowed to participate in the inspections. The CSHO is permitted to interview employees privately during normal business hours. The employer is obligated to pay employees for time spent accompanying CSHO’s conducting workplace inspections.

Employee communications with the media regarding working conditions have been held protected under the OSH Act. Back pay has been held an appropriate remedy for retaliatory discharge. State retaliatory discharge and employment law remedies may not be preempted by the OSH Act. The OSH Act non-discrimination provisions are an exception to the general rule that an "at-will" employee has no cause of action for termination.

Employees are statutorily protected from discrimination. This statutory mandate is codified OSHA's rule, 29 CFR § 1977, "Discrimination Against Employees Exercising Rights under the Williams-Steiger Occupational Safety and Health Act of 1970." By final rule dated February 9, 1998, OSHA became the agency responsible for enforcement of a number of federal whistleblower laws. 63 F.R. 6614-6625.

6. Documents and Records.

OSHA requires records be maintained for various periods, including thirty (30) days, five (5) years, "for the duration of the employer’s reliance upon such objective data," "one year beyond the last date of employment of that employee," and thirty (30) years (e.g., 29 C.F.R. Section 1910.1020(d)(1)(I), and 29 C.F.R. Section 1910.1001(m)(3)(iii)).

III. The Citation

When the Compliance Safety And Health Officer (CSHO) finds violations, the employer is notified in writing, and this document is called a Citation. The employer must post a copy of the citation. 29 U.S.C.A. §658(b). The period of time to correct the violation is called the Abatement Period. With the Citation will come the Notification of Proposed Penalty.

A citation must be issued, if at all, within sixty (60) days of the alleged violation. Subsequent to receipt of the citation the employer and/or employees may want to participate in informal settlement, formal contest, and/or appeal.

A. Informal Settlement Process.

Informal administrative review is only possible before the employer files a Notice of Contest, and before the expiration of the fifteen (15) working day period to file a Notice of Contest. Thereafter, the OSHA Area Office is not permitted to withdraw or alter the citation.

During informal administrative review, employer may negotiate the nature and number of citations, and amounts of proposed penalties.

A penalty can be reduced up to 95%. Up to 25% reduction is available upon a showing of "good faith," e.g., health and safety management program. No good faith adjustment is available if there are any willfull violations. Up to 60% reduction is available based on the size of the employer. 60% is available for employers with 1-25 employees; no size reduction is allowed for employers with more than 250 employees. The size reduction is cut in half for any willfull serious violations. Adjustment is permitted based on history of previous violations. 10% is allowed if employer has had no violation in three (3) years. Abatement also allows penalty reduction.

Penalties may also be increased. For egregious cases, the penalty may be multiplied by the number of violation instances. For repeat violations in non-egregious cases, the penalty may be multiplied by 5-10.

B. Formal Contests.

1. Notice of Contest.

When the employer wishes to contest a citation or the proposed penalties, he must notify OSHA within 15 working days of receipt of a Notification of Proposed Penalty.

The following have been found not to excuse untimely Notice of Contest: misplacement of the citation; manager responsible for OSHA matters went on vacation; demands of ongoing business; lack of experience in OSHA matters; abatement verification form filed during the 15-day period; docketing of the case by the OSHRC's Executive Secretary; belief that correction of violations was sufficient; employer's financial problems; letter was dated within the contest period, while the postmark was not; telephoning the OSHA area office; oral conversation with a OSHA representative.

Employees and their representatives (unions) may only contest the proposed abatement period, not the citations or proposed penalties.

2. Litigation Before the Review Commission.

The OSHA Area Office forwards Notice of Contest to the OSHRC within 15 days of receiving the notice of contest from the employer. The OSHRC Executive Secretary notifies the employer, the Department of Labor, and other parties of receipt of the Notice of Contest and the docket number assigned to the case. The Department of Labor is the Complainant and the employer is the Respondent.

OSHA rules, 29 CFR § 2200 et seq., specify requirements for the complaint, answer, other pleadings, discovery and hearing before an administrative law judge.

At the close of the hearing, each party is entitled to argue the case orally. A transcript will be made of oral arguments. Often, post-trial briefs will be filed in lieu of oral arguments, which may include proposed findings of fact and conclusions of law..

Thereafter, the ALJ will issue a written decision, which will be mailed to the parties. It will include an order affirming, modifying or vacating each citation and penalty. The ALJ’s decisions must be based on the record, including references to specific evidence, and reasons for failing to credit witnesses. The Secretary (OSHA) has the burden of proving each citation and penalty by a preponderance of the evidence, and the ALJ’s decision must address the elements of proof.

On the eleventh day after mailing the decision to the parties, the ALJ will file the decision with the OSHRC for docketing.

After the ALJ’s decision, either party may seek review by the OSHRC. A Commissioner may also direct review sua sponte. Discretionary review may be sought by filing a petition with the ALJ within the ten (10) days before the ALJ sends the decision to the OSHRC for docketing. 29 C.F.R. Section 2200.91(b). Review may also be sought by filing a request with the OSHRC within twenty (20) days of docketing. If the OSHRC does not direct review within thirty (30) days of docketing, the ALJ’s Order becomes final and appealable to the Court of Appeals. Failure to seek review of the ALJ’s decision may foreclose review by the Court of Appeals.

29 C.F.R. Section 2200.92-96 outline procedures for hearings before the OSHRC, including briefs and oral arguments. Any party may file for a stay of the ALJ’s order pending OSHRC review. There is no time limit on the OSHRC"s decision. To decide, two (2) of the three (3) OSHRC members must be in agreement. Whether the order becomes final after thirty days for failure of OSHRC to review, or whether it becomes final as an order of OSHRC after review, parties have sixty (60) days from the date the order becomes final to request review by the Court of Appeals.

3. Appeals to the Circuit Courts.

The Court of Appeals’ review is limited to objections made to the OSHRC and to the same record and grounds upon which the OSHRC decided the case.

4. Summary.

Administrative process begins with the inspection, citation and informal review period with the OSHA Area Office. After employers file a Notice of Contest within 15 working days, settlement discussions continue between employer and the Department of Labor Solicitor’s Office. Employees may only contest reasonableness of the proposed abatement period. If no settlement is reached, the case is tried by an Administrative Law Judge, whose decision may be review by the OSHRC. The ALJ’s order becomes final thirty (30) days after docketing where there is no OSHRC review, or on the date of the OSHRC decision in the event of OSHRC review. Review by the Court of Appeals may be sought within sixty (60) days thereafter. Final review may be sought before the United States Supreme Court.

IV. Expectations Under the Current Administration and Beyond

A. General.

The media spotlight was recently on OSHA as a result of its Final Ergonomics Standard promulgated November 14, 2000 while the Bush-Gore Presidential election underwent contest proceedings. On March 6 and 7, 2001, the New Congress nullified the ergonomics rule (56-44 in the Senate), which was the first such use of the Congressional Review Act of 1996. The following chronology may shed light on future expectations for OSHA under the Bush Administration:

  • March 22, 2001: Four (4) of the six (6) Senate Democrats who voted to nullify the ergonomics rule (led by Senator John Breaux former Bush cabinet candidate) introduced a bill to require an ergonomics rule within two (2) years. S. 598.
  • March 30, 2001: Treasury Secretary O’Neill, former Chairman of aluminum maker Alcoa, suggested a single mandatory OSHA rule: any company not reducing its workplace injuries to two (2) per hundred employees per year would be put out of business.
  • April 26, 2001: Labor Secretary Chao testifies before Congress that the Department of Labor is committed to providing protections against ergonomic injuries.

More than thirty years after the signing of the OSH Act into law by Republican President Nixon, we may expect new rules, initiatives and enforcement activities by OSHA under the Bush Administration.

Current issues involving OSHA include: proposed rule on ergonomics; other rulemaking, including silica; mandatory safety and health programs; congressional OSHA improvement initiatives; OSHA policies regarding home-based work; OSHA’s use of voluntary employer health and safety audits; OSHA’s Voluntary Protection Program (VPP); OSHA outreach, training and consultation services; site specific enforcement targeting; federal workplaces; whistleblower cases; contractor blacklisting; and improved rulemaking.

B. Ergonomics.

Criticisms of the nullified ergonomics rules included overly-narrow grandfather provisions; vague standards to distinguish work-related from non-work-related injuries; and possible trigger of a corporate-wide ergonomics program by one single injury. Complaints had to be evaluated, including the assistance of a health care professional at no cost to the employee. Employees placed on work restrictions were to be provided with full earnings, benefits and rights for ninety (90) days. For "problem jobs", the employer was required to develop an ergonomics program, including management and employee participation, job hazard analysis, hazard reduction and control measures, and training. It is likely that some form of ergonomics rule will be promulgated in the future.

C. Silica.

In October 1996, the International Agency for Research on Cancer classified crystalline silica as "carcinogenic to humans." Since then, NIOSH, NTP and ACGIH have issued information classifying silica as a carcinogen. OSHA plans to propose a rule on crystalline silica.

D. Safety and Health Programs.

In 1988 OSHA requested comments and information, and in 1989 it issued voluntary guidelines, for safety and health programs. The guidelines address management commitment, employee involvement, worksite analysis by competent persons, hazard prevention and control, training, and the benefits of having a written program.

OSHA has decided to expand on these guidelines by developing a rule on safety and health programs. The safety and health programs required by the proposed rule will include at least the following elements: management leadership of the program; active employee participation in the program; analysis of the worksite to identify significant safety and health hazards of all types; and eliminating or controlling those hazards in an effective and timely way.

E. Home-Based Work.

On February 25, 2000, OSHA issued Directive CPL 2-0.125, Home-Based Worksites. OSHA will not inspect home offices, will not hold employers liable for home offices and does not expect employers to inspect home offices. OSHA will only inspect other home-based worksites, such as manufacturing operations, when OSHA receives a complaint or referral.

F. Voluntary Employer Health and Safety Audits.

On October 6, 1999 (64 FR 54358-54361), OSHA published a proposed policy statement on the use of voluntary employer health and safety audits. The proposed policy provides CSHO’s will not routinely request self-audit reports at the initiation of an inspection and will not use them to identify hazards upon which to focus. OSHA will seek access to such reports only when it has an independent basis to believe a hazard warrants investigation and such records may be relevant.

G. Discrimination Against Whistleblowers.

Section 11(c) of the OSH Act (29 U.S.C.A. § 660(c)) prohibits discharge of, and discrimination against, any employee because such employee has filed an OSHA complaint or testified in an OSHA proceeding. This statutory mandate is codified OSHA's rule, 29 CFR § 1977, "Discrimination Against Employees Exercising Rights under the Williams-Steiger Occupational Safety and Health Act of 1970."

H. Indoor Air Quality.

In 1991, OSHA issued a Request for Information on Indoor Air Quality in the Workplace. A Notice of Proposed Rulemaking was issued in 1994, but OSHA has not finalized a rule. Anti-tobacco interests have been a significant driving force in urging OSHA to issue an indoor air quality rule, arguing OSHA’s failure to act is inconsistent with OSHA’s rule, 29 C.F.R. Section 1990, "Identification, Classification, and Regulation of Carcinogens.

OSHA may cite employers under the General Duty Clause, 5(a)(1). However, disputes over secondhand tobacco smoke exposure can often be resolved by prohibiting smoking indoors or by providing separately ventilated smoking areas indoors. The role of other possible indoor air contaminants, such as molds, or carpet or furniture off-gassing, have not arisen to a level to compel OSHA to issue a rule.

I. Conclusion.

The recent transition of the Executive Branch from Democratic to Republican control is not necessarily a sign that OSHA rulemaking or enforcement will be relaxed. After all, the OSH Act was signed into law by a Republican President. Since taking office, Bush cabinet members have publicly addressed needs for workplace health and safety initiatives. Congress has also introduced legislation to require an ergonomics standard within two (2) years. Therefore, we may expect new rules, guidance and enforcement activities from the new Administration once an OSHA Administrator is in place.