OSHA on the Roof, Part II
OSHA Inspection ResultsAfter a formal OSHA inspection (see Roofing Contractor, March 2001, pp. 22-26), the compliance officer (CO) compiles his site notes, photo documentation, monitor or test results, and employee/employer interviews. Findings are presented to the area director. Before compliance is addressed, the CO and area director consider what precisely is being done on the job site, including: normal production, alterations and renovations, new construction and additions; as well as general, regularly scheduled maintenance procedures.
They will also identify all of the employers on site and their relationships to one another. They will follow the “pay trail” and thereby assign the identifications of “controlling (host) employer,” “exposed employer,” “creating employer,” and “correcting employer” in relation to the hazards that were found in the inspection. A thorough discussion of the inspection may include other OSHA officers who have corroborating evidence or had previously inspected some of the employers involved.
The size of the companies, site-specific extenuating circumstances and a history of “good faith” abatement efforts in the past are some of the additional criteria considered by the director to determine whether citations will be issued and the value of penalties to be addressed. Depending on these evaluations and the scope of the inspection, this process may take hours or days to complete.
CitationsOSHA citations are documents supplied to the employer by the OSHA area office, which informs him/her of the OSHA standard(s) allegedly found in violation during the inspection. The following items are common to all citations:
- The employer is sent citations via registered mail. Signed, dated and timed receipts are evidence that the citation has been served. The abatement period begins at the receipt of registered mail.
- The employer must post citations(s) in proximity to the violation for 3 days or until the hazard is abated (whichever is longer).
- Notations are made where the employer corrected a hazard during the inspection period, thus eliminating the abatement period (citation still required to be posted).
- The citation stipulates the time the employer may take to abate the hazard or provide corrective measures.
- There are instructions that employees must be protected or prevented from hazardous exposure during abatement period. If it is not possible until the abatement is totally completed, then employees must be prohibited from bodily reaching the “danger zone” by any means, including temporary layoff or closing business.
PenaltiesOSHA penalties are financial payments that the employer must make to the Department of Labor for each cited violation. They are usually based on: 1) the probability of site conditions and work practices combining to increase the potential of an accident; and 2) the worst-case factors that may combine to increase the severity of effects on the employees. OSHA considers an accident to have only three possible outcomes: injury, illness or death. If something could occur to an employee without those results, it is listed as an incident (possibly near miss). The severity classifications on which penalties are assessed include:
- Typically directly related to employee health and safety.
- Probably would not cause death or serious harm.
- $1,000 minimum, $7,000 maximum for each.
- May be adjusted downward up to 95 percent for good-faith effort to abate, size of company and violation history.
- When adjusted, a less than $100 penalty is “deminimus” (without penalty). Deminimus violations are still on record and uncorrected by result in a potential willful violation in the future.
- Typically directly related to employee health and safety.
- A substantial probability of death or serious physical harm.
- $1,500 minimum, $7,000 maximum.
- May be adjusted downward (no percentage) for good faith effort to abate, size of company and violation history.
- Always directly related to employee health and safety.
- A violation of an OSHA standard that employer knowingly and intentionally commits without regard to employee safety.
- Employer understands the standard’s requirements, is knowledgeable of the unsafe act or condition, and elects to do nothing to correct conditions or prevent injury.
- $5,000 minimum, $70,000 maximum.
- If convicted in criminal procedure of willful violation resulting in death, the employer may be fined $250,000 to $500,000, six months in jail, or both. A second conviction doubles the jail term.
- Much like a willful, a repeat violation occurs when, upon re-inspection, a substantially similar violation is found.
- $1,000 minimum, $70,000 maximum.
- May be adjusted by the size of employer (more than 250 employees may result in a multiplier of 5 to 10).
Failure to Abate
- Failure to correct prior violation may bring civil penalties.
- Beyond 30 days past abatement date – a daily penalty may arise.
- If convicted, $10,000 maximum and/or six-month jail sentence.
Assaulting a CO
- Resisting, opposing, intimidating or interfering with a CO’s inspection.
$5,000 maximum and three-year jail sentence.
Adjustment FactorsOSHA sets fines according to the gravity of the violation; the size of the company; “good faith” efforts to correct hazards; and violation history. OSHA may possibly reduce the amounts of these penalties based upon the number of workers employed: one to 25 employees, 60 percent; 26 to 100 employees, 40 percent; and 101 to 250 employees, 20 percent. Good faith efforts to protect employees may result in an additional 25-percent reduction. A 10-percent reduction may be given if the employer has no history of OSHA violations.
Contesting the CitationIf you wish to contest the OSHA violation, you do not have to pay the penalty within the required 15 days. The procedures are complicated and ongoing, and you are recommended to retain a lawyer experienced in labor law. It is initiated by writing a letter to the OSHA compliance officer who issued your citation, claiming that you believe the penalty assessed was too high. Further correspondence should be directed to your attorney.
It may be worth your efforts, since most employers who contest their citations do receive a slight reduction in penalties. Even if your fine is reduced, however, your overall costs may be higher. After all, it is the net that matters most. Even if you have been reviewed by an OSHA hearing examining judge and found liable, you may continue to appeal through the Occupational Safety and Health Review Commission (OSHRC). This is a formal “court of last result,” which may grant a discretionary review either orally or in writing. If OSHRC sets a penalty, it may also include a civil action in federal District Court. If the employer continues to resist payment after the decision, a $7,000 per day penalty may ensue.
Co-ViolationsSome labor statistics indicate that multi-employer construction work sites may increase the possibility of worker accidents up to 100 percent. Simply having two contractors onsite simultaneously can lead to a dangerous condition or hazardous act that would not be possible if just one contractor was working. Large multi-employer work sites may contain dozens of contractors with hundreds of employees. The hazard assessment for such a site may reveal catastrophic possibilities. Currently all area offices in every region have an option to issue co-violations to employers on such a site. This procedure includes citing the “creating” employer as well as all of the “upstream” and “downstream” contractors in the organizational chart.
“Downstream” employers are those whose employees may be in harm’s way due to the actions or negligence of others within the project limit lines. They don’t necessarily have to have a contractual relationship with another employer to be exposed.
“Upstream” employers are those who have clear legal responsibility for safety, quality and productivity of their subcontractors. OSHA may often apply penalties “upstream” by multiple factors of 2,4,6 and even 8. While a subcontractor may receive a $1,000 fine for a violation for not providing GFCIs to his employees, his prime contractor may be fined up to $2,000 and the host employer (property owner) up to $4,000. This process is not always practiced by OSHA. However, when it is evident that a multi-employer work site has no clear hazard communication planning, it is a very direct means to get the employers to align themselves to ensure the safety of all the workers, regardless of their relationships or affiliations.
SummaryOSHA’s directive is to clarify the rights and obligations of employers and employees. Upon closer inspection, we note that the significant rights belong to the worker and the responsible obligations are the employer’s. After all, it is the employer’s workplace where the employee’s productivity generates profit. With one of the highest fatality rates and an ever-increasing accident rate, few would argue that the construction industry needs no safety regulations. Enforcement of these laws by means of a financial penalty (subtracted from profits) is, most would agree, a very effective penalty.
OSHA’s inspection policy has never remained static. It was born in 1970 out of the tragic and monumental loss of lives from exposure to asbestos. Since then, the resulting regulations, violations and penalties imposed by OSHA for using, and later improperly abating, handling and disposing of asbestos has probably saved the lives of some of our children, parents and coworkers. That’s the idea behind occupational safety and health: mandate that employers provide a safe and healthy work place for all employees at all times. It isn’t perfect for everyone, but the alternative is unacceptable.