Ten Keys to Avoiding OSHA Liability

When OSHA arrives at your work site, will a compliance officer find one of these common problems?

Our occupational safety and health practice spans the country. Our work has taken us from New York to California, North Dakota to Texas, most states in between, and even to the farther reaches of Alaska and Guam. The companies we counsel vary in size and come from a variety of industries. They encompass a wide variety of working environments that pose a smorgasbord of regulatory compliance challenges. They also present a wide disparity in the sophistication of their safety and health programs. They include sites that have not experienced a serious worker injury for years, if ever, as well as sites reeling from the trauma of a workplace catastrophe involving multiple fatalities.

Despite this extreme variation in location and circumstances, it is surprising how often the same basic safety and health issues are encountered from workplace to workplace. These issues arise not just with sufficient frequency to make them familiar, but often enough to make them predictable. Therefore, it makes sense for you to consider these common issues and ensure that your company has taken steps to address them before an OSHA inspection of your work site begins.

To assist your efforts, I have summarized 10 common stumbling blocks that I have observed employers repeatedly tripping over while navigating the OSHA compliance path.

1) Lack of a systematic safety approach. A common failure is an apparent lack of appreciation of the fact that maintaining a safe workplace requires efforts specifically targeted at achieving that goal. Too often, it is mistakenly assumed that work tasks are so simple, hazards so obvious and employees so knowledgeable that little communication is necessary concerning how to work safely. Also, a false sense of security is often created by the fact that the workplace has been trouble-free in the past, leading to an assumption that safe work practices are understood and followed by employees.

Safety, however, does not "just happen." It must be anticipated, planned and built into the day-to-day culture of the workplace in a systematic fashion. Even with such efforts, there is no guarantee that an accident will not occur. In the event that something goes wrong, however, an employer who can readily point to a systematic approach that is in place at the work site to instill safety awareness in employees will stand in far better stead than an employer who can only resort to vague descriptions of how safety is addressed and why it was assumed that an injured employee should have known better.

2) Inadequate documentation of safety efforts. Under the present OSHA scheme, it is not enough for an employer to simply take actions directed at safety education and training. Rather, given the fact that the OSHA program is largely enforcement-based, all safety and health efforts should be undertaken with a focus also on documenting efforts being made. Although the effort itself is commendable, it can go for naught if you are unable to provide an OSHA inspector with documentation establishing that the effort has been made.

Therefore, it is very important to systematically generate a paper trail that will clearly establish that safety rules have been communicated to employees, training provided, safety meetings held and safety rules enforced. Although creating and maintaining this documentation requires an ongoing investment of time and effort, dividends will be paid beyond your investment when you are challenged to prove that sufficient efforts were made to prevent an accident or a violation of an OSHA standard.

3) Sporadic or irregular safety meetings. Although this item largely goes hand-in-hand with the lack of a systematic safety approach and inadequate documentation issues, it nevertheless is discrete enough to deserve separate mention. It is surprising how often employees struggle in trying to answer a rather straightforward question: How often are safety meetings held at the workplace? It can be difficult to set a positive safety tone during an agency inspection or interview when managers, supervisors or hourly workers are unable to answer this question because safety meetings do not take place or, if they do, they are not held with any identifiable regularity or as part of an overall plan.

Conversely, I have witnessed many potentially difficult enforcement situations be swiftly defused by the fact that the company has held regular, well-documented safety meetings, including daily tool box talks, weekly safety meetings, monthly mass meetings or special post-incident safety reviews. Also, maximum benefit is derived from these meetings if the agendas clearly reflect that the topics regularly discussed include those areas that present the greatest potential for exposure or occurrence at the particular workplace involved.

4) Inattention to new-hire safety orientation. A systematic approach to employee safety necessarily should start at the beginning, i.e., at the time when employees are hired. It is important to get employees started on a proper safety path from the outset of their employment with your company. Because an individuals safety awareness should not be taken for granted, affirmative steps should be taken to assure that each new employee is informed of the company"s commitment to safety and its safety rules, the types of hazards they are likely to face in the workplace, how hazards can be eliminated or avoided and the consequences for failure to adhere to safety requirements.

Too often, employees are processed onto the payroll and sent to begin their work tasks with little or no specific safety communications having been made. Even where some safety communications have been made, they often are conveyed in an unstructured or undocumented manner. When accidents or regulatory violations involving new employees occur, it is a safe bet that the instruction and training the employees received upon entering your work force will be scrutinized. Therefore, it is worthwhile to invest the time when employees are hired to convey your basic safety message and requirements to them through some combination of discussions, training, video presentations and workplace walkthroughs, and to document that you have done so.

5) No response to safety audits or recommendations. Safety and health audits are a ubiquitous commodity these days. It seems that everyone is willing to do you the favor of examining your workplace and safety program and offering their opinion as to how each can be improved. Although the motivation for safety and health audits is laudable, if they are not handled correctly, the consequences can quickly turn disastrous. The major benefit and the major problem inherent in such audits are the same: they identify safety and health-related deficiencies that the auditors believe are present in your facility or your programs. These deficiencies may be real or imagined, but in either event, they are red flags for an inspector reviewing the audit to determine whether identified "hazards" have been corrected. If the inspector determines that they have not, the risk of a "willful" violation is substantially raised.

If only one message is taken away from this article, it should be this: Undertaking a safety or health audit and failing to adequately respond to a finding made in the audit puts your company at greater risk than if the audit had not been undertaken in the first place.

6) Mishandling employee relations on safety issues. The purpose of the Occupational Safety and Health Act (OSH Act) and its implementing standards and regulations is the protection of workers. As the agency in charge of enforcing the OSH Act, OSHA takes its mission seriously, and rightly so. It is not surprising, therefore, that OSHA takes a particularly dim view of situations where it believes employers have not responded appropriately to employee questions or complaints about perceived workplace hazards.

The OSH Act"s provisions protecting employee complaints to OSHA provide an everpresent vehicle for employees to initiate OSHA inspections that can lead to enforcement actions against their employers. Given this, employers are well-advised to take employee safety and health complaints and suggestions seriously, to initiate productive discussions with the employee concerning the matter, to respond appropriately and to document the consideration and response. Although in some instances, the employees may not be satisfied, in many cases, they will be. Even if the employee remains dissatisfied and complains to OSHA, the fact that the employer treated the issue seriously and addressed it in good faith will prove helpful during OSHA"s investigation.

7) Failure to regularly inspect work environment. Employer walk-throughs or self-inspections of the workplace are an important component of an effective safety and health program. Because most workplaces are dynamic environments where conditions can change suddenly or over time, walkthroughs or inspections are a basic means for staying on top of the workplace conditions and identifying hazards that have developed and need to be addressed.

Far too often, however, an OSHA inspector walks through a site and readily observes noncomplying or hazardous conditions that result in easily documented, hard-to-disprove citation items. In some circumstances, particularly following a workplace injury, these "plain view" items provide the basis for willful citations. Company personnel, particularly safety personnel, are equally able to observe these conditions during their walk-throughs, and should ensure that obvious situations are addressed promptly, before someone is injured or citations are issued.

8) Overlooking industrial hygiene issues. Generally speaking, it is a fair comment that at many workplaces, safety issues get more consistent attention on a day-to-day basis than do industrial hygiene (i.e., employee exposure to harmful substances) issues. In large part, this is because, at many workplaces, opportunities for employee exposure to hazardous substances capable of causing illnesses are substantially less than opportunities for exposure to physical conditions capable of causing injuries. The disparity in attention, however, is also attributable to the fact that industrial hygiene issues may not be as obvious to the untrained eye. Whatever the cause, failure to focus on these issues and give them the attention they deserve can have serious consequences.

Unaddressed industrial hygiene issues have the potential for causing widespread harm to the health of employees and substantial OSHA liability. At every work site, deliberate consideration should be given to evaluating the potential for exposure to contaminants. If a reasonable potential for exposure to a contaminant above a permissible level is presented, appropriate monitoring should be conducted. If monitoring results establish overexposures, the situation needs to be addressed through changes to engineering controls or work practices. Depending on the circumstances, medical surveillance of employees may be required. Although industrial hygiene issues may be more subtle and easier to overlook, the costs of doing so can be large.

9) Nonexistent or unenforced safety rules. Safety rules are another basic component of an effective safety program. As part of a systematic approach to safety, time should be taken to identify key safe work practices that employees must follow. These rules should be in writing, address general and specific site safety requirements and be effectively conveyed to employees, not only upon hiring, but also on a periodic basis throughout their employment.

If your work site does not have written safety rules, they should be developed. Equally important, if such rules are already in place, they need to be effectively enforced. The effort to develop and communicate safety rules is wasted if there is ineffective follow-through to verify and obtain employee compliance with the rules. Here too, a paper trail is important. Documentation should be generated and maintained to show how the need to comply with safety rules and the consequences for not doing so are communicated to employees. Documentation establishing that violations of the rules are addressed through counseling, warnings, suspension or termination also is essential.

10) Mishandling OSHA inspections. Although the sources of potential OSHA liability are present before OSHA arrives to conduct an inspection, it is when inspections begin that the liability threat becomes imminent. Even so, employers often underestimate the potential consequences of an OSHA inspection, particularly following a serious accident. Because an OSHA inspection can lead to alleged violations, including willful violations, and substantial penalties, it is prudent to treat each inspection seriously and in an orderly fashion.

Although OSHA has substantial enforcement authority under OSH Act, its authority is not without bounds. Employers and employees also have rights that must be respected. Employers should have a system and plan in place for how inspections will be handled, and ensure that persons who are knowledgeable concerning the Act"s requirements and liability risks presented are involved from the start of the inspection.

In summary, taking the time to review how your workplace measures up in these 10 key areas should help in identifying steps that should be taken to significantly reduce your company"s OSHA liability exposure.

Contributing Editor Jim Lastowka is a member of McDermott, Will & Emery"s OSHA Practice Group in Washington, D.C.

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