Best Practices for Staying Off of OSHA’s “Naughty List”

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Construction projects, both big and small, pose a host of safety risks and challenges.  Ask anyone who has ever swung a hammer and they will tell you that sometimes accidents on a jobsite are unavoidable.  Construction employers, and in some cases project owners, are required to comply with a number of regulations designed to limit the probability and severity of jobsite accidents.  This article discusses common violations, some recent regulatory changes, best practices for complying with OSHA regulations, and some do’s and don’ts in the unfortunate event that an accident occurs. 

The Occupational Safety and Health Administration, commonly known as OSHA, and its state counterparts in states such as Oregon, Washington and California enforce a variety of rules intended to minimize the risk and severity of workplace accidents in the construction industry.  Those rules, and  enforcement priorities, often track the most common hazards, which include many hazards present on construction sites.  Of the ten most frequently violated regulations in 2017, most are relevant to construction employers, including those relating to Fall Protection, Hazard Communication, Scaffolding, Ladders, and Electrical – Wiring Methods. 

In addition to these commonly cited regulations, OSHA has recently begun enforcing rules designed to minimize the risk posed by exposure to crystalline silica.  Crystalline silica is a component of soil, sand, granite, and other minerals. It can be inhaled when workers drill, grind, or cut objects that contain it.  In the construction industry, exposure can occur during many different activities, including sand blasting, jack hammering, rock drilling, concrete mixing and drilling, and brick and concrete cutting, to name a few.  OSHA’s rules impose exposure limits and require employers to implement engineering controls, require respirators when necessary, and limit access to high-exposure areas.  For workers who face a heightened risk of exposure, employers may also be required to provide medical exams and training.

Also of note, OSHA and its state counterparts have recently begun implementing significant increases in the maximum penalties for violation citations.  The maximum penalty, applicable to “repeat” violations or violations categorized as “willful” or “egregious,” is now $126,749 – up from a previous maximum of $70,000. 

Although complying with the numerous regulations addressing jobsite hazards can seem overwhelming and the threat of increased penalties intimidating, there are a number of best practices employers can follow to ensure compliance and avoid citation for a violation.  First, employers should keep abreast of changes in the regulatory requirements and regularly update their safety manuals and training programs to reflect those changes.  Employers should also be sure to consistently enforce their safety rules and to document enforcement.  Perhaps most significantly, if an employer is made aware of a safety violation, by self-inspection, an audit, or an employer complaint, it should promptly take the steps necessary to correct the issue and document the correction.  Employers may also want to consider conducting safety audits to ensure that they are in compliance with OSHA requirements, but this step should not be taken lightly.  In some instances OSHA may be able to gain access to such documents and use them as evidence in an enforcement proceeding. 

There are a number of steps employers can take to minimize the likelihood of a citation.  First, as noted above, employers should develop and enforce a safety program that complies with OSHA regulations.  Second, an employer should take appropriate efforts to control the flow of information in the time period following an accident and during the OSHA investigation.  Employers need only provide documentation in response to specific questions and requests.  Well-meaning efforts to open your files to an OSHA inspector can result in unintended consequences, like additional violations and citations. Using legal counsel to conduct internal accident investigations may provide the ability to assert the attorney-client privilege as it relates to some investigation materials, especially where employers work with the attorney to produce and review preliminary drafts so that unnecessary admissions can be avoided in documents OSHA is entitled to review.  Finally, and most importantly, to the extent they are required to answer questions or provide documents, employers should be honest and forthcoming, and they should instruct their employees to do the same.  

The task of maintaining a comprehensive safety program can be daunting, but it is necessary to minimize the risk of jobsite accidents, maintain productivity, and avoid the penalties and fines associated with OSHA violations.  Fortunately, by following the best practices outlined above, construction employers can maximize their chances of meeting their OSHA obligations and avoid finding lumps of coal in their stockings.

Originally published as “OP-ED: Best practices for staying off of OSHA’s ‘naughty list’ ” by the Daily Journal of Commerce on December 14, 2017.

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W. Cory Haller
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