As a Florida Bar Board Certified Construction Lawyer in Tampa, Fla., Trent Cotney handles all aspects of construction law and commercial litigation and arbitration, including OSHA defense. He provided the legal perspective on preventing and defending OSHA citations at Best of Success in his presentation titled “The OSHA Inspection and Citation Process.”
Cotney stated that the best way contractors can help themselves in the event of an OSHA inspection is to have a well-defined safety program in place before the inspector shows up at the jobsite — and be able to prove it. This includes having a comprehensive safety manual, and documentating all training sessions and disciplinary actions. “The best paper wins the day,” he said. “Proper documentation will help you tremendously. If you don’t have it, go home and get it tonight because it will be the difference between beating a citation and getting one.”
He advised contractors to make sure their safety manual covers all types of work the company is doing. Each employee must sign a form indicating they received the manual. “OSHA is going to ask for it, so save time and money and get it done now,” Cotney said.
Ongoing training should be well documented, noted Cotney. “Train and retrain,” he urged. “Conduct toolbox talks and make sure you have a sign-in sheet. Pass it around and have everybody sign it. Then place a copy in all employees’ folders.”
Any disciplinary action must also be recorded. “You’ve got to have the documentation to prove you’ve been implementing the disciplinary policy consistently,” Cotney said.
When an OSHA representative arrives on the site, workers should be prepared to respond properly, asserted Cotney. He advises that contractors stop work immediately and call the company to have a management representative come to the site. “Don’t have your people working while OSHA is out there,” Cotney said. “My number one recommendation is to ask them to call management and have someone come out to the jobsite. Generally, OSHA will wait 15 or 20 minutes. The key thing is to remain diligent.”
Crew members might be scared or intimidated into signing a statement if they don’t know their rights. “It’s important that you help your crew understand what the process is,” Cotney said.
Cotney recommends that you document the jobsite with photos or video. It can be the key to a factual defense if a citation is issued. “It’s important that you video or take photos of each roof at the time of the inspection,” he said. “If you don’t have photos, it’s harder to prove.”
He also reminded attendees to stay on top of OSHA regulations. “Don’t get complacent,” he said. “OSHA is changing things constantly. You have to keep up with it.”
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