By Bruce Rolfsen
Routine violations, not catastrophic events or fatalities, are the problems most likely to expose companies to large fines from the Occupational Safety and Health Administration, attorneys specializing in representing employers in workplace safety cases said Oct. 27.
Ed Foulke, who served as OSHA administrator during the George W. Bush administration and now is a partner with the law firm Fisher & Phillips LLP, gave the example of supervisors neglecting to ensure fire extinguishers are inspected every month and marking the extinguisher inspection tags.
Foulke and Howard Mavity, also a partner with Fisher & Phillips, spoke during an Oct. 26 webinar sponsored by BNA, OSHA's mega-penalty citations and how to avoid them.
When an OSHA compliance officer arrives, expect the inspector to check the tags, Foulke said.
“It's easy; all [they] have to do is turn the tag over,” Foulke said.
Other problematic routine violations—“low-hanging fruit” in the lawyers' nonlegal language—include blocked exits, personal protection equipment issues, improper materials handling and racks, recordkeeping, and housekeeping.
By themselves, these violations do not usually generate large penalties. But if inspectors conclude the violations were willful or repeat problems, found during other inspections anywhere in the company within the last five years, each violation can produce a proposed fine of up to $70,000.
Several factors lead to the hefty fines for these violations, the attorneys said:
• Under President Obama, OSHA has had a high-penalty enforcement focus. At least once a week, OSHA announces a $100,000-plus penalty, Foulke said.
• New inspectors may not be familiar with the standards applying to every establishment they visit, but inspectors do know blocked exits are a violation in any circumstance.
• Inspectors are evaluated on how many citations they issue, and are likely to cite the problems they find.
• Expanding the window of vulnerability for repeat violations from three years to five increased the likelihood of repeat citations.
“A five-year review is very much a sword hanging over your neck,” Mavity said.
Mavity and Foulke recommended several actions employers should take to reduce the risk of large OSHA penalties:
• Share with the company's other worksites all citations issued to your location so that the other establishments can determine if they have similar problems that could result in high-dollar repeat violations. “You've got to make sure those problems don't exist at other facilities,” Foulke said.
• Be aware if your company is covered by an OSHA emphasis program that increases the chances of an inspection.
• Conduct a job safety analysis.
• Engage employees in being part of the company's safety plans. A willful violation can be triggered by the actions of the lowest-level managers.
• Pay attention to paperwork details such as having written certification that a personal protection equipment hazard assessment was done. “There is a lack of documentation, and this administration is looking for documentation,” Mavity warned.
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