Legal Aspects Of Safety And Health

OSH 3525, Legal Aspects of Safety and Health 1

Course Learning Outcomes for Unit IV Upon completion of this unit, students should be able to:

6. Outline employer rights and responsibilities following an OSHA inspection. 6.1 Discuss an employer’s options to contest OSHA citations and penalties.

 

Reading Assignment OSHA’s Field Operations Manual (FOM): Chapter 7: Post-Citation Procedures and Abatement Verification Occupational Safety and Health Administration. (2011). Field Operations Manual. Retrieved from

https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-159.pdf

Unit Lesson When an Occupational Safety and Health Administration (OSHA) inspection results in citations and penalties, employers can react in many different ways, including disbelief, anger, and confusion about what is required. However, there are some specific requirements that all employers must follow, and some options that are available under the Act. Employees also have some rights after the inspection is complete and citations and penalties have been issued. Many discussions about what can be done after an inspection has been completed are limited to employers, and the rights of employees are not considered.

The OSHA inspection process is supposed to be transparent to employees. This means that the employer has to post any citations that were issued by OSHA. The citations must be posted in the location where the violation(s) occurred, or nearby, and must remain posted for at least 3 days or until the violation(s) have been abated, whichever is longer. Some employers mistakenly believe that they do not have to post the citation notice if they are going to contest the citations. This belief is incorrect. The citation notice must be posted whether the employer is going to contest the citations or not. These posting requirements are specified in 29 CFR 1903.16. Employers can be further cited and penalized if they fail to post a copy of the original citations. Additionally, any abatement certification documents, abatement plans, progress reports, and a notice of informal conference made by the employer to OSHA

concerning the citations must be posted so employees can see the responses. The Act provides both employers and employees with certain rights after the completion of an inspection. These rights are designed to ensure that both the employer and employee have the ability to contest citations and penalties that they believe are unfair. There are several processes available ranging from informal discussions to formal legal proceedings. The employer may decide to simply accept and abate all the citations and pay the proposed penalties. If the

UNIT IV STUDY GUIDE

Employer Rights and Responsibilities after an OSHA Inspection

(US Dept. of Labor, 2011)

 

 

 

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employer chooses this option, they must complete the abatement prior to the abatement date specified in the Notice of Citations and Penalties and pay the penalty(ies). 29 CFR 1903.20 provides a process for both employers and employees (or their representative) to request an informal conference with the area director, or their representative. An employee may desire to have an informal conference because they believe their safety or health concerns were not adequately addressed by the OSHA inspection. An employer may desire the informal conference because they believe the citations and penalties were too harsh, because they do not understand some part of the citation or penalty, or to highlight some additional information about their health and safety program(s) to the area director that they believe may mitigate the severity of the citations and penalties. In some cases, the area director may agree to reduce the severity and/or amount of the penalty(ies). If this occurs, an informal settlement agreement may be reached and further litigation avoided. It should be noted that employees, or their representatives have the right to participate in any informal conference. This is the reason a notice of an informal conference must be posted in or near the area where citations occurred. Many health and safety experts recommend that an employer always request an informal conference after citations and penalties are issued. Employers must remember that the informal conference does not delay the 15 working days that the employer has to file a notice of contest. Therefore, the employer must schedule the informal conference early enough to allow time to file a Notice of Contest, if necessary. If the employer does not file a Notice to Contest within 15 working days, the citation becomes a final order. This means that the area director can no longer change the seriousness of citations or the penalties because they have become final orders. The ability of the employer or employee to formally contest citations, penalties, and abatement dates is extremely important for ensuring due process is provided. The contest process means the employer or employee does not have to accept the views of the compliance officer(s) and the area director without any ability to defend themselves or challenge what is perceived as an inadequate or over reactive response to an employee complaint. An employer or employee does not have to contest every citation and penalty. In fact, in most cases, only a portion of the citations and penalties are challenged. Once a formal notice to contest is filed, the case is in litigation and the area director cannot take any additional actions until the case is heard by an administrative law judge (ALJ) assigned to the case. There are many federal agencies that use ALJs. The ALJs that hear contested OSHA citations are from the Occupational Safety and Health Review Commission (OSHRC). The OSHRC was created along with OSHA after the Act was passed. It should be noted that the OSHRC is an independent organization, separate from OSHA and the Department of Labor. This separation was by design to make sure there is no undue influence over the OSHRC. This helps ensure the hearings are impartial. We will study the OSHRC and ALJs in more detail in Units VI and VII. The Citation and Notification of Penalty document will specify state abatement dates for each citation. The dates are set by the compliance officer performing the inspection based on his/her best estimate of the time required to complete the abatement. Employers have the right to formally petition for an extended abatement date if they believe they will not be able to meet the original date. 29CFR 1903.1 contains specific requirements for filing a Petition for Modification of Abatement Date (PMA). The final document OSHA requires for citations is abatement certification. Abatement certification is required for all citations that have become final orders, except “quick-fix” items that were corrected during the inspection. 29CFR 1903.19 contains specific requirements for abatement certifications. The regulation includes some more extensive documentation for more serious violations. The Citation and Notification of Penalty will typically specify which violations require additional certification. The area director may require an abatement plan to be submitted for some violations, especially if the abatement is complicated or may take an extended period of time. The area director may also require the abatement plan to include interim measures to protect employees during the extended abatement process. If an abatement plan is required, the employer may be required to periodically submit progress reports.

 

 

 

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References Missling, T. (2011, July 28). US Department of Labor [Digital image]. Retrieved from https://flic.kr/p/afYuLP Occupational Safety and Health Administration. (n.d.). Purpose and scope, 29 CFR § 1903.1. Retrieved from

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9605 Occupational Safety and Health Administration. (n.d.). Posting of citations, 29 CFR § 1903.16. Retrieved from

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9621 Occupational Safety and Health Administration. (n.d.). Abatement verification, 29 CFR § 1903.19. Retrieved

from https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9624

Occupational Safety and Health Administration. (n.d.). Informal conferences, 29 CFR § 1903.20. Retrieved

from https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9628

Occupational Safety and Health Administration. (2011). Field Operations Manual. Retrieved from

https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-159.pdf

Suggested Reading If you are interested in learning more about inspections and abatement, review the resources below: Occupational Safety and Health Administration. (n.d.). All about Occupational Safety and Health

Administration. Retrieved from https://www.osha.gov/archive/Publications/osha2056.html Occupational Safety and Health Administration. (n.d.). Employer rights and responsibilities following a federal

OSHA inspection. Retrieved from https://www.osha.gov/Publications/osha3000.pdf Occupational Safety and Health Administration. (n.d.). OSHA inspections. Retrieved from

https://www.osha.gov/Publications/osha2098.html Occupational Safety and Health Administration. (n.d.). OSHA’s abatement verification regulation. Retrieved

from https://www.osha.gov/Publications/Abate/abate.html Occupational Safety and Health Administration. (n.d.). Petitions for modification of abatement date. Retrieved

from https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9619

 

Learning Activities (Non-Graded) OSHA has a hierarchy of controls that must be used for abatement of hazardous conditions. You can view OSHA’s Hierarchy of Controls at the website below: https://www.osha.gov/dte/grant_materials/fy10/sh-20839-10/hierarchy_of_controls.pdf Review the Hierarchy of Controls, and summarize the different types of abatement techniques that would fit into each category.