You Can Beat An OSHA Citation!
October 27th, 2009
We have been contacted by several companies inquiring as to how they can prevent OSHA Citations. We always stress the importance of a strong safety program that includes an enforced discipline policy for violating the company’s safety program, constant training, consistent job site audits, strong safety analysis, and a motivated work force.
We provide an unique service for this area. A Safety Program that works! We have used years of experience with several types of programs that have failed or fell short of our needs. Based on this experience we have developed a program that exceeds OSHA requirements, motivates your employees, prevents OSHA citations, and if your are cited as a result of an employee failure to follow the program, allows you to void this type of citation.
Below is an example of what happens when you use a program like ours and you are cited.
STAHL ROOFING
The federal Occupational Safety and Health Review Commission, the agency in charge of adjudicating workplace safety and health disputes between OSHA and private industry, has held that in order to establish a violation of a standard or regulation, OSHA has the burden of proving that the employer had actual or constructive knowledge of the violative condition (Bel Tel. Co., 19 BNA OSHC 1097 (No. 98-1748, 2000)). The violative condition typically consists of an hourly employee violating the terms of the cited standard or regulation (Burch Construction Inc., 22 BNA OSHC 1275 (No. 07-0663, 2008)).
The commission has held that in order to establish that the employer had constructive knowledge of the violative condition, OSHA has the burden of proving that the employer could have known of the violative condition with the exercise of reasonable diligence (Donahue Indus. Inc., 20 BNA OSHC 1346 (No. 99-0191, 2003)). The commission also has held that whether an employer was reasonably diligent involves a consideration of several factors, including, “The employer’s obligation to have adequate work rules and training programs, to adequately supervise employees and to take measures to prevent the occurrence of the violation.”
In cases litigated before the commission, employers have been able to assert a successful defense in response to OSHA citations and proposed penalties by arguing that the government failed to meet its burden of proving constructive knowledge of the violative condition. In support of this argument, these employers presented evidence at trial that they exercised reasonable diligence by developing work rules, communicating those rules to employees, taking steps to discover the violations and effectively disciplining employees who violated those rules.
In Stahl Roofing Inc. (19 BNA OSHC 2179 (No. 00-1268, 2003)), for example, an OSHA compliance officer witnessed two employees working on the roof of a house without wearing fall protection and personal protective equipment. OSHA issued a citation to Stahl, alleging that the two-man crew failed to wear fall protection in violation of 29 C.F.R. § 1926.501(b)(13) and failed to wear personal protective equipment in violation of 29 C.F.R., § 1926.102(a)(1).
The issue in the case before the commission was whether OSHA met its burden of proving that Stahl had constructive knowledge of the violative conditions — the violative conditions being the two-man crew working on the roof of the house without wearing fall protection and personal protective equipment (PPE). That is, whether Stahl could have known of the violative conditions with the exercise of reasonable diligence.
The commission determined that Stahl had written work rules requiring employees to wear fall protection and PPE. In this regard, Stahl had a work rule requiring that safety harnesses be worn and that employees be tied off at any unprotected position above 6 feet. Stahl also had a work rule requiring that safety glasses be worn when performing any operation that may present a hazard of eye injury, such as hammering nails into a roof.
The commission also determined that Stahl adequately communicated these rules to its employees. The commission reasoned that during new-hire orientation, Stahl gave the employees a copy of its safety rules and went over each safety rule with them. Stahl also provided a demonstration to the employees regarding how to use the safety equipment that is issued to them, and required the employees to demonstrate that they know how to use the safety equipment and sign a form stating that they will comply with the safety rules. Stahl also held periodic company-wide safety meetings and weekly toolbox meetings where the safety rules are reinforced.
The commission also determined that Stahl adequately supervised its employees. The commission explained that Stahl supervisors visited each worksite at least once a day. The safety manager and safety director also made regular, unannounced visits to the worksites. There was also no evidence that Stahl should have perceived a need for additional monitoring of the employees.
The commission also determined that Stahl had a written disciplinary procedure and enforced the procedure when employees violated the safety rules. Regarding the written disciplinary procedure, the first step was an oral reprimand, the second step was a written reprimand, the third step was withholding of pay and the fourth step was termination of employment. There was flexibility in the progression of the written disciplinary procedure based on the severity of the safety infraction and other relevant factors.
DONAHUE INDUSTRIES
Regarding the enforcement of the written disciplinary procedure, Stahl previously had issued written warnings, withheld pay and even terminated employees for safety infractions. Stahl also issued two written reprimands and fined the two-man crew for their safety infractions. Stahl terminated one of the members of the two-man crew after he committed subsequent safety infraction.
The commission concluded that OSHA had not met its burden of proving that Stahl failed to exercise reasonable diligence and therefore could have known of the violative conditions. For this reason, the commission vacated the citation.
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