OSHA Enforcement
Avoiding the Pitfalls of Common OSHA Compliance Mistakes

Avoiding the Pitfalls of Common OSHA Compliance Mistakes

The three most common OSHA compliance mistakes are failure to develop and enforce written EHS plans and rules, failure to track and implement corrective actions and failure to review case law, compliance directives and relevant letters of interpretation.

When attempting to comply with OSHA standards and regulations, there are three common compliance mistakes that even some of the most sophisticated employers often commit.

First, employers do not develop written safety and health rules, communicate those rules to employees, take steps to discover the violations or ensure that employees who violate those rules are disciplined. As a result, employers are not in a position to find and abate certain violations or argue, in response to an OSHA citation item, that they could not have known of the violations, which is a legal defense to any OSHA citation item.

Second, employers do not properly track and, in a timely manner, implement corrective actions that are generated in response to incident investigations, process hazard analyses, compliance audits and other types of internal workplace safety and health analyses. OSHA often relies on a lack of timely implementation of corrective actions as a recipe for issuing citation items to employers.

Finally, employers do not review relevant OSHA interpretation letters, OSHA compliance directives, the OSHA Field Operations Manual or case law for guidance when determining compliance with applicable OSHA standards and regulations. Moreover, depending on the OSHA standard or regulation or complexity of the subject matter, employers do not consult with a legal practitioner for compliance guidance. By avoiding these three common pitfalls, employers significantly can reduce their compliance risk.

First Compliance Mistake

A common compliance mistake is that employers do not develop written safety and health rules, communicate those rules to employees, take steps to discover the violations or ensure that employees who violate those rules are disciplined accordingly. As a result, employers are not in a position to find and abate certain violations or argue, in response to OSHA citation items, that they could not have known of the violations.

Regarding safety and health rules, employers should put these requirements in writing. Some OSHA regulations require that certain safety and health rules be in writing, and OSHA often issues citations for failing to develop written safety and health rules.

Even if OSHA standards do not require certain safety and health rules to be in writing, employers still should do so. An example of such a rule would be that employees are prohibited from removing a guard on a piece of equipment. By having all safety and health rules in writing, employers have better communication with employees.

Regarding the communication of safety and health rules to employees, employers should ask the employees to review the rules and explain the rules to the employees at various times, such as new-hire orientation, safety and health meetings and safety and health training sessions. The individuals who communicate the rules can be hourly employees, management personnel and/or safety and health professionals. Employers also should place a copy of the safety and health rules in the facility so employees readily can access and review them when necessary. This can be in the form of a hard or electronic copy or both.

The frequency of the communication varies depending on the requirements of the applicable OSHA standard or regulation. If a frequency requirement does not exist in an applicable OSHA standard or regulation, it will vary depending on the gravity of the subject matter and preference of the individual employer. Employers should document that they have communicated the rules to the employees. This typically takes place in the form of sign-off sheets that employees sign. Employers should avoid the mistake of missing an employee who is absent from work on the day of the communication. Employers should communicate the rules with the employee when he or she returns from work and document the communication.

Regarding steps to discover violations of the safety and health rules, employers should conduct periodic, unannounced audits of the facility. The audits should be designed to assess whether employees are violating the safety or health rules. The individuals who conduct the audits may be hourly employees, management personnel or safety and health professionals. The benefit of having all three groups perform this task at various points in time is that all, not just some, employees are invited to take responsibility of safety and health in the workplace. Simply put, employees will have a deeper commitment to safety and health.

The frequency of the auditing varies depending on the requirements of the applicable OSHA standard or regulation. If a frequency requirement does not exist, frequency will vary depending on the gravity of potential hazards and preference of the individual employer. Employers should document that they have performed the audits and periodically review them to identify areas of auditing in need of improvement.

Regarding the discipline of employees who violate those rules, employers should have a disciplinary policy and procedure for violating safety and health rules in the workplace. The procedure may have progressive steps of discipline, but at the same time be flexible depending on the gravity of the violation.

For example, an employer may consider smoking a cigarette in an area where flammable materials are in the atmosphere a grave violation warranting the immediate termination of the employee. Other violations, such as forgetting to sound the horn of a lift truck when coming through a doorway, might not be considered as dangerous a violation.

An employer must have flexibility for certain violations, because the risk is immediate and severe. Moreover, an employer must be able to send a swift message to other employees that this type of behavior will not be tolerated in the workplace.

Furthermore, employers should follow the disciplinary procedure even for seemingly minor infractions like failing to wear hearing protection on a particular day. Over time, a lack of discipline for minor safety and health infractions sends a message to employees that there are no consequences for safety and health violations in the workplace. This, in turn, will lead to major safety and health infractions in the workplace. Employers should document that they have disciplined employees and review the documents periodically to identify areas of discipline, such as consistency, in need of improvement.

By developing written safety and health rules, communicating those rules to employees, taking steps to discover the violations and ensuring that employees who violate those rules are disciplined accordingly, employers will be in a position to find and abate violations or argue, in response to an OSHA citation item, that they could not have known of the violations – a legal defense to any OSHA citation item.

Second Compliance Mistake

Another compliance mistake is that employers do not track and implement in a timely manner corrective actions that are generated in response to incident investigations, process hazard analyses, compliance audits and other types of internal workplace safety and health analyses. OSHA often relies on a lack of timely implementation of corrective actions as a reason for issuing citation items to employers.

For example, section 1910.119(m) (1) of the Process Safety Management Standard, 29 C.F.R. §1910.119, requires that employers “investigate each incident which resulted in, or could have reasonably resulted in, a catastrophic release of highly hazardous chemical in the workplace.” Section 1910.119(m)(1) states that “[a] report shall be prepared at the conclusion of the investigation which includes at a minimum . . . recommendations resulting from the investigation.” Section 1910.119(m)(5) states that “[t] he employer shall establish a system to promptly address and resolve the incident investigation report and findings and recommendations. Resolutions and corrective actions shall be documented.”

Regarding these requirements, OSHA has issued citations to employers alleging that the employer did not have a “system” to address or resolve the incident investigation findings and recommendations or that the employer did not “implement” the corrective actions. OSHA has used the failure to implement corrective actions as the basis for issuing citation items to an employer. For example, the agency may find that a lack of safe work practices contributed to an incident. OSHA has used the failure to implement the corrective action to issue a citation item alleging a violation of the safe work practice requirement under section 1910.119(f)(4).

Third Compliance Mistake

Another compliance mistake is that employers do not review relevant OSHA interpretation letters, OSHA compliance directives, the OSHA Field Operations Manual or case law for guidance when determining compliance with applicable OSHA standards and regulations. Moreover, depending on the OSHA standard or regulation or complexity of the subject matter, employers should, but often do not, consult with a legal practitioner for compliance guidance.

Many of OSHA’s standards and regulations, for example, are based on national consensus and federal standards that originated several years before the existence of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. For example, the Fixed Ladder Standard, 29 C.F.R. § 1910.27, is based on the 1956 version of the American Standard Safety Code for Fixed Ladders, A14.3. This is problematic for many employers because several of the standards and regulations are not written with model clarity. That leaves safety and health professionals with the daunting task of interpreting unclear standards and regulations.

There are many resources on which safety and health professionals can rely, however, in order to achieve compliance. Safety and health professionals should review OSHA interpretation letters, OSHA compliance directives, the OSHA Field Operation Manual or case law for compliance guidance.

Depending on the OSHA standard or regulation or complexity of the subject matter, employers should consult with a legal practitioner for compliance guidance. This is particularly true when OSHA’s interpretation, through whatever form that may be, is unreasonable. Courts have consistently held that OSHA is not entitled to deference regarding unreasonable interpretations of its own standards and regulations. This is where a legal practitioner may be of assistance.

 

Michael T. Taylor is counsel in the Washington, D.C., office of Pillsbury Winthrop Shaw Pittman LLP, focusing extensively on all aspects of occupational safety and health law. He represents employers and trade associations during federal and state OSHA enforcement litigation and rulemaking proceedings. He also provides OSHA inspection counseling, safety and health compliance counseling, catastrophe management, safety and health audits, safety and health due diligence reviews and whistleblower representation for clients. He can be reached at [email protected] or 202- 663-8041.

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