Beware of the Follow-Up OSHA Inspection

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

The OSHA penalty structure is specifically designed to punish employers more severely for uncorrected hazards discovered by the agency during a previous inspection. As of January 23, 2019, the maximum fine for a willful or repeat violation is $132,598; the maximum fine for failing to correct a hazard after the prescribed abatement date is $13,260 per day.

It is not surprising, therefore, that a follow-up OSHA inspection can yield significantly greater proposed penalties than an original inspection. Indeed, the largest citation ever issued by OSHA included $50.6 million in proposed fines against BP Products North America, Inc. for failing to abate hazards from a previous inspection.

To be sure, follow-up inspections have low priority for OSHA according to an agency publication.  A follow-up inspection can nevertheless be triggered by many circumstances, including (1) the nature of the employer’s operations, (2) the nature of hazards discovered during the initial inspection, (3) the failure of the employer to provide timely abatement documentation following the initial inspection, and (4) an event triggering another priority, such as an accident or complaint.

The road from an initial OSHA inspection to resolution of a citation can certainly be a difficult and costly one. For an employer which has heeded the lessons of the initial inspection, a follow-up inspection can be a mere annoyance. For an employer which has not heeded these lessons, however, a follow-up inspection can be devastating.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

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Are You Following The Correct OSHA Standard?

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

In February 2016, Bergelectric Corporation (“Bergelectric”)  was installing solar panels on the roof of a hangar at the Marine Corps Air Station in San Diego, California. The roof of the hangar was low-sloped and six feet or more above a lower level. Bergelectric employees were using warning lines and a safety monitor as prescribed by 29 C.F.R. § 1926.501(b)(10) of OSHA’s fall protection standard, which applies to employees performing roofing work on low-sloped roofs.

On February 24-25, 2016, OSHA conducted an inspection of the worksite. Based on the inspection, the agency issued a citation alleging a violation of 29 C.F.R. § 1926.501(b)(1) of OSHA’s fall protection standard, which requires employees working near the unprotected sides and edges of certain roofs to be protected by guardrail systems, safety net systems or personal fall arrest systems (“PFAS”).

Bergelectric contested the citation.  Although it did not dispute the absence of guardrail systems, safety net systems or PFAS, the company alleged its worked was governed by the safety standard for roofing work on low-sloped roofs, rather than the stricter standard applicable to unprotected sides and edges.  The Occupational Safety & Health Review Commission nevertheless upheld the citation, and Bergelectric filed a Petition for Review with the Ninth Circuit Court of Appeals.

In a June 6, 2019 Per Curiam Opinion, the Ninth Circuit denied Bergelectric’s Petition for Review.  In doing so, the court noted that the installation of solar panels did not fall within the definition of “roofing work” in 29 C.F.R. § 1926.500(b).  That regulation defines “roofing work” as “the hoisting, storage, application, and removal of roofing materials and equipment, including related insulation, sheet metal, and vapor barrier work, but not including the construction of the roof deck.”  The Court determined that the solar panels had “no connection to roofing and were, instead, simply the installation of a system that often happens to sit atop a roof.”

Without question, OSHA standards are voluminous and complex.  As the experience of Bergelectric demonstrates, an employer nevertheless interprets these standards at its own peril. Even a good faith effort to comply with safety standards can, if proved erroneous, result in an OSHA citation.

To minimize the risk of a citation, it is thus prudent for employers to evaluate whether their work may be subject to stricter OSHA standards than called for by current safety protocols.  If necessary, legal counsel should be consulted.  Such a review may avoid learning the hard way, as did Bergelectric, that the employer should have been following a stricter OSHA standard. Even if it is determined that the current safety protocols are correct, such an effort would help bolster the defense of an erroneously issued citation (which OSHA has been known to do) and show the commitment of the employer to compliance with OSHA directives.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

OSHA Amends Electronic Record Rules

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

As reported in a previous post on this blog, OSHA published on May 12, 2016 a final rule amending its record-keeping regulations to include new electronic submission mandates. The 2016 rule requires that establishments with 250 or more employees electronically submit injury and illness data they are already required to record on their onsite OSHA Forms 300 (Log of Work-Related Injuries and Illnesses), 301 (Injury and Illness Incident Report) and 300A (Summary of Work-Related Injuries and Illnesses). The 2016 rule further mandates that, for 66 classified industries,  an establishment with 20-249 employees electronically submit its OSHA Form 300A.

On January 24, 2019, OSHA published a new final rule which amends the previous 2016  rule effective February 25, 2019 in two respects.

First,  establishments with 250 or more employees are no longer required to electronically submit information from OSHA Forms 300 and 301. Such employers are still required to electronically submit information from OSHA Form 300A.

Second, each establishment required to electronically submit its OSHA Form 300A must include its Employer Identification Number with the submission.

As with the 2016 rule, the new rule does not alter an employer’s duty to maintain OSHA Forms 300, 301 and 300A on-site, and OSHA will continue to obtain these forms as needed through inspections and enforcement actions.

Collection of Calendar Year 2018 information from the OSHA Form 300A began on January 2, 2019. The deadline for electronic submissions is March 2, 2019.

OSHA Open During Partial Government Shutdown

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

Although many federal agencies have been affected by the partial government shutdown, the U.S. Department of Labor is not one of these agencies. The U.S. Department of Labor, including OSHA, has already been fully funded through September 30, 2019, as part of the Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019, signed into law by President Trump on September 28, 2018.

Accordingly, OSHA remains open, and is conducting work site inspections, despite the partial government shutdown.

Fifth Circuit Expands OSHA’s Authority To Cite General Contractors

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

In 1981, the Fifth Circuit Court of Appeals announced in Melerine v. Avondale Shipyards, Inc., that “OSHA regulations protect only an employer’s own employees.” For thirty-seven years, this decision shielded general contractors in the Fifth Circuit from OSHA citations as to hazards to which their own employees were not exposed. On November 26, 2018, however, the Court overturned this long-standing precedent.

In Acosta v. Hensel Phelps Construction Co., the Fifth Circuit addressed a citation arising from a cave-in hazard at a multi-employer construction worksite. In reliance upon its Multi-Employer Citation Policy, OSHA cited both the general contractor and a subcontractor for the hazards, even though only the subcontractor’s employees were exposed to the hazard.

An Administrative Law Judge (“ALJ”) of the Occupational Safety & Health Review Commission found that the general contractor met the requirements of a “controlling employer” as to the hazard under the Multi-Employer Citation Policy. Citing Melerine, the ALJ nevertheless vacated the citation against the general contractor because only employees of the subcontractor were exposed to the hazard.  The Secretary of Labor appealed.

Citing a “seismic shift” in administrative law since Melerine, a unanimous three-judge panel of the Fifth Circuit reversed. In doing so, the Court expressly held OSHA does have the authority under the Occupational Safety & Health Act (“OSH Act”) “to issue a citation to a general contractor at a multi-employer construction worksite who controls a hazardous condition at that worksite, even if the condition affects another employer’s employees.”

For general contractors in Texas, Louisiana and Mississippi, the impact of the reversal of a doctrine which had been around for thirty-seven years cannot be overstated. Responsibility for the safety of all workers on a multi-employer construction worksite is now a non-delegable duty of a general contractor which is the “controlling employer” on the site. The days are over when such a general contractor could simply look to its subcontractors to safeguard the safety of their own employees.

Furthermore, the risks of an OSHA inspection of a multi-employer worksite just increased for general contractors. These risks do not simply include hazards to which only employees of a subcontractor are exposed. The risks include prior inspections which can now be cited as evidence of willful violations.

If they have not done so already, therefore, general contractors in these states must now look to the Multi-Employer Citation Policy for guidance not only as to their responsibilities under the OSH Act, but also as to the consequences of having an ineffective safety compliance strategy for a multi-employer worksite or an inadequate plan for handling OSHA inspections at such a site.

Eleventh Circuit Limits Scope Of Unprogrammed Inspection

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On October 9, 2018, the Eleventh Circuit Court of Appeals in U.S. v. Mar-Jac Poultry, Inc., affirmed a district court order quashing a search warrant which sought to expand the scope of an unprogrammed OSHA inspection.

Following an electrical accident at Mar-Jac Poultry, Inc., a Georgia poultry processing plant, OSHA requested to inspect not only those hazards involved in the electrical accident, but also to conduct a comprehensive inspection of the entire facility for additional hazards. Mar-Jac consented to inspection of the electrical accident site and the tools involved, as well as its OSHA 300 Logs, but refused to permit inspection of any additional areas or hazards.

In its application for a judicial warrant for an expanded inspection, OSHA sought to inspect (1) hazards implicated by the OSHA 300 logs, and (2) hazards that the Poultry Regional Emphasis Program (“REP”) identified as being of particular concern within the poultry processing industry. OSHA obtained its requested warrant, but Mar-Jac promptly filed an emergency motion to quash.

The District Court granted the motion to quash as to the hazards identified in the Poultry REP. The Court found OSHA had failed to establish that Mar-Jac was selected for inspection pursuant to the application of neutral criteria. OSHA did not appeal this ruling.

The District Court also granted the motion to quash as to five hazards implicated by the OSHA 300 logs.  OSHA did appeal this ruling to the Eleventh Circuit.

In affirming the District Court ruling, the Eleventh Circuit opined: “The existence of injuries does not necessarily mean that the injuries were caused by OSHA violations, or justify the issuance of an administrative warrant for evidence of OSHA violations.”  Upon analysis, the Court thus ultimately found: “The content of the OSHA 300 logs in this case fails to create reasonable suspicion [of an OSHA violation] either alone or in combination with the other information in the [warrant] application.”

The Eleventh Circuit ruling confirms what this blog has urged in multiple posts.  There are limits to the permissible scope of an unprogrammed OSHA inspection. If OSHA is unwilling to agree to a limited inspection, there are options which can be explored with legal counsel for fighting an expanded inspection.

OSHA Reverses Course On Safety Incentive Programs and Post-Accident Drug Testing

By Robert G. Chadwick, Jr, Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On May 12, 2016, OSHA published a final rule that, among other things, added a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. See 29 C.F.R. § 1904.35(b)(1)(iv)  The agency subsequently published guidance clarifying that certain workplace safety incentive programs and post-accident drug testing programs could deter reporting and therefore violate the new anti-retaliation rule.

On October 11, 2018, OSHA reversed course in its interpretation of the anti-retaliation rule. In a Memorandum to Regional Administrators, the agency clarified that the rule “does not prohibit workplace safety incentive programs or post-incident drug testing.”  Rather, action under a safety incentive program or post-incident drug testing policy would be unlawful only “if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting safety and health.”

The Memorandum provides welcome clarification for employers which use incentive programs to promote workplace safety and health.  The Memorandum advises that an employer can avoid any inadvertent deterrent effects of  incentive program by implementing:

  • “an incentive program that rewards employees for identifying unsafe conditions in the workplace;
  • a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
  • a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”

Employers would do well to heed such advice.

The Memorandum also clarifies that drug testing is permissible “to evaluate the root cause  of a workplace incident that harmed or could have harmed employees.” Still, the Memorandum cautions that “[i]f the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.” Employers would also do well to heed such advice, as well as be mindful that drug testing may be regulated by applicable state or local laws.