OSHA is Here
February, 2006
These are words that can make management personnel at the largest of companies stop and ask themselves, “now what do we do.” The Occupational Safety and Health Administration (“OSHA”) has compliance officers that enforce the OSHA regulations set forth in the Code of Federal Regulations. Typically, we receive calls from new clients after OSHA has already been there and the citations have been issued.
OSHA may show up at your facility for a number of reasons. If there was a serious accident involving a death or hospitalization of three or more employees, then you are required to notify OSHA. However, a frequent reason that you may receive an unexpected visit from an OSHA compliance officer is that one of your employees called and complained of a hazardous condition on the premises. OSHA may also show up on a routine administrative inspection. The question becomes what do you do when OSHA knocks.
It has been our experience that some employers are not aware that OSHA has no absolute right to enter your premises absent permission or a warrant. Employers do not seem to know that they can refuse entry to OSHA or if allowed in, they can limit OSHA’s inspection. Employers do not have to open their file cabinets and provide everything OSHA requests, but you do have to provide copies of documents you are required to maintain by the regulations. Every situation dictates its own response and it is important to understand your rights because OSHA penalties can be substantial.
If there is a serious accident on your premises requiring you to call OSHA, your next call should be to your counsel. When OSHA comes on the premises, especially after an accident, you need someone present to facilitate and direct your cooperation with the OSHA inspection to ensure your legal rights are protected. Your counsel must be familiar with OSHA procedures and the administrative regulations.
Until employers are exposed to an OSHA inspection, they don’t realize the magnitude of the potential violations. OSHA may issue willful, repeat, serious, or other citations. The willful violation carries a potential fine of $70,000. Willful violations are issued when OSHA determines based on facts it developed during its investigation that the employer knew of the violative condition, the law imposed a duty to abate the condition, and the employer did nothing to correct the problem. Importantly, if there was an accident which caused a death and the employer receives a willful violation of an OSHA regulation, the case will be reviewed by the U.S. Attorney’s Office to determine if a criminal prosecution should be undertaken.
Repeat citations carry fines of up to $70,000. If you have resolved a prior citation from OSHA for violating a regulation and within a three year period OSHA discovers the same or similar violation at any of your business facilities, you could receive a repeat violation.
Serious violations exist when there is substantial probability that death or serious physical harm could result and carry a potential fine up to $7,000 for each violation. In addition to what may commonly be understood to be serious physical harm, OSHA also issues serious violations if a burn, cut, or laceration might possibly occur. OSHA may issue a citation for “other” violations when it considers the violation to be a non-serious event but it is a violation of a specific safety standard. Once again, the fine can be up to $7,000 for each violation.
If you ever hear the words “OSHA is here,” or need to prepare for an OSHA inspection, please contact John T. Groark, jgroark@clausen.com. •
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