There are misunderstandings about OSHA law, OSHA citations, the burden of proof, and other issues which often result in wasted time and resources. This article will highlight common misperceptions and discuss the correct understanding of these issues.
1. Serious Citations
A “serious” citation does not mean serious in the ordinary sense of the word. The OSH Act defines a serious violation as one that presents “a substantial probability that death or serious physical harm could result…..”. Notice the word “could” in the definition. This appears to be internally inconsistent to have the words “could” and “substantial probability” in the same sentence. The Occupational Safety and Health Review Commission (OSHRC) addressed the argument that the serious violation is internally inconsistent because the word “could” means a mere possibility and not a “substantial probability”. The OSHRC held that the “probability” of an accident occurring is not relevant. Rather, OSHA’s burden of proof is only to establish by a preponderance of the evidence that IF an accident occurred, then a serious consequence would be substantially probable. For example, the probability of the collapse of a trench dug near stable rock is nearly zero. But if the trench did collapse, an employee would likely be seriously injured or killed. The seriousness of a safety standard or regulation is easily proven by OSHA. Safety professionals know that many employers fear the practical consequence of being publicly accused of being a “serious” lawbreaker. Therefore, sophisticated safety professionals and lawyers with significant OSHA experience often use every technique at their disposal to arrive at a settlement without the “serious” violation language.
2. OSHA v. OSHRC
The Occupational Safety and Health Review Commission (OSHRC) is not connected with the Occupational Safety and Health Administration (OSHA). The OSHRC is a separate and independent agency which decides disputes and appeals regarding OSHA citations and violations. The OSHRC consists of three members who are nominated by the President of the United States and confirmed by the Senate. Many experienced safety professionals confuse OSHA and the OSHRC. It is often the case that the OSHRC does not agree with OSHA’s interpretation of the facts and application of the regulations. Therefore, depending on the circumstances, a Notice of Contest filed within 15 days of receipt of the OSHA citations might be appropriate and well worth the effort.
3. Does it Matter if the OSHA Inspector Knows Anything About Your Business?
Employers often complain about the OSHA inspector and that the inspector knew nothing about the business or the machinery at issue. The problem is that these types of complaints are legally irrelevant; they do not matter to the Judge. The Judge is concerned about whether the cited standard or regulation was violated and whether the facts support the violation. If the OSHA inspector, known as a Compliance Safety and Health Officers, are qualified by the Judge, then the focus should be on the facts and the law. However, if the inspector’s knowledge is insufficient to make a judgement call on whether the facts present a hazard or whether there was a feasible way to comply with the regulation, and the inspector testifies on that issue by providing his or her opinion, then the inspector’s qualifications become an issue. The employer’s attorney should be able to impeach the inspector’s credibility on the issue of lack of knowledge and expertise to support his or her opinion of a potential hazard. The Judge might be convinced that the OSHA inspector’s opinion is flawed and the citation might be vacated.
4. Violation Expiration
OSHA violations last forever. Many employers believe that the violations “go away” after 5 years and may no longer be used as the basis for “repeat” violations. This is not correct. There is no period of time after when an OSHA citation will not be on an employer’s record. OSHA’s Field Operations Manual stated in years past that “the following policy shall generally be followed: A citation will be issued as a preat violation if the citation is issued within 5 years of the final order date of the previous citation”. The word “generally” means that if OSHA believes the employer is ignoring OSHA regulations and prior citations then it will go back as many years as necessary to establish a repeat violation. Therefore, employers must be aware of the potential for repeat violations and abate the hazard found by OSHA.
5. Causation Doesn’t Matter
OSHA will often issue a citation immediately after an accident. The impression therefore for employers is that OSHA believes the accident caused the citation and penalty. That is not a correct understanding of the law. The OSHRC has held that the “issue is not the cause of the accident, but whether the standard has been violated”. So employers should not waste time and expense litigating the cause of the accident but rather focus on whether the facts support OSHA contention that the standard was violated.
6. Burden of Proof
Finally, the law requires OSHA to prove that the employer violated a safety regulation. In other words, employers are not guilty until proven innocent. The elements that OSHA must prove to establish a violation, by a preponderance of the factual evidence, are well established:
- The regulation applies to the safety or health hazard (fall, electrocution, confined space, etc.);
- The employer failed to meet the requirements of the regulation (there was no fall protection, no machine guards in place, etc.);
- One or more employees were actually exposed to the hazard so the employee(s) could have been injured by the hazard; and
- The employer knew, or with the exercise of reasonable diligence could have known, of the violation of the safety regulation.
Employers should focus on each element of OSHA’s burden of proof in analyzing the citation and whether to contest it. The evidence compiled by OSHA is mainly through its inspections. Statements by supervisors are imputed as “knowledge” to the company of the violation of a safety regulation. As such, supervisory personnel should be trained on safety regulations and made aware of how to deal with OSHA inspectors and the inspection process.
These are some common misconceptions in OSHA enforcement and OSHA law. Please contact a member of the Labor and Employment Section with questions or further information.