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Houston OSHA Law Blog

Are your employees wearing personal protective equipment?

In South Texas, the average temperature in September is above 90 degrees. For many workers, the heat of summer and fall creates challenging work environments. The most obvious challenges are heat exhaustion and heat stroke that result from exposure to the sun. Employers should also watch for another potential danger to workers from the heat: a lack of personal protective equipment.

Personal protective equipment (PPE) is mandated either by employers or by safety regulations to protect workers from hazards. It may involve head, ear or eye protection, hand protection, leg and foot protection, respiratory protection, or other equipment that protects workers from hazards.

What are the maximum fines for OSHA violations?

The Occupational Safety and Health Administration (OSHA) issues financial penalties for violations of its safety regulations. According to OSHA's field operations manual, the penalties are designed to encourage all employers to prevent and correct hazards immediately. It says that Congress intended penalty amounts to be "sufficient to serve as an effective deterrent to violations."

The maximum penalties for violations include:

  • Other-than-serious violations: The maximum penalty is $7,000. These are violations that would not cause death or serious harm.
  • Serious violations: The mandatory penalty is $7,000. These violations could cause death or serious physical harm. If convicted of a willful violation that results in death, the recipient could face a criminal conviction, up to $250,000 per individual and $500,000 per corporation as well as jail time.
  • Failure to abate a violation: The maximum penalty is $7,000 per day after the abatement period ends.
  • Willful or repeated violations: The maximum penalty is $70,000 for each violation after the abatement period ends.

Companies with OSHA violations face new scrutiny for federal contracts

The White House is targeting contractors with poor safety records. An executive order signed late last month is intended to create greater scrutiny of the safety records of companies that receive federal contracts. The order, signed July 31, will require that companies when seeking a federal contract must disclose labor law violations. That includes violations handled by the Occupational Safety and Health Administration (OSHA).

Such violations can already make it more difficult for a business to obtain government contracts. The new executive order affects contracts for goods and services - including construction - that exceed $500,000. In these cases, companies must disclose whether they have had any OSHA violations or violations of 14 other labor laws within the past three years.

Defending Against OSHA Whistleblower Claims

The number of Occupational Safety and Health Administration (OSHA) whistleblower claims has increased substantially in the past few years. According to OSHA, there were 2,787 claims in 2012, compared with 1,934 claims in 2005. In addition, thousands of employees have brought claims under OSHA whistleblower protection laws, alleging that their employers retaliated against them for bringing forward safety concerns or participating in OSHA investigations.

Employers must be prepared for these claims, from handling internal complaints that could lead to federal whistleblower claims to responding appropriately to government inquiries.

Done correctly and with the right facts, it is possible to defend against OSHA whistleblower claims. In fact, the majority of claims in 2012 were dismissed (1,665 claims) or withdrawn (565 claims). Even if a claim is eventually dismissed, however, employers can still face harmful exposure caused by an OSHA whistleblower complaint.

What can your company do to protect itself when an employee makes a claim with OSHA?

The OSHA General Duty Clause (GDC)

The OSHA General Duty Clause (GDC) states that an employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 29 U.S. Code §654(a)(1). This clause exists to cover hazardous conditions that may not be specifically addressed in the CFR, or for which the written regulations are outdated but still present a significant danger to workers.

The primary element of the General Duty Clause is the existence of a "recognized hazard." A recognized hazard is one that the employer had or should have had knowledge of, an obvious hazard, or one that is generally recognized by the industry in question. This is obviously quite a broad definition, which serves as a catch-all for many unforeseen conditions that might arise on a job site.

OSHA Abatement

Your company has received an OSHA citation; what happens now? Properly dealing with an OSHA citation is more complicated than cleaning up your job site and calling it a day. OSHA provides a set of guidelines for abatement verification, to be followed when correcting the problem a citation was issued for and notifying OSHA that the situation has been resolved.

OSHA defines abatement as "the correction of the safety or health hazard/violation that led to an OSHA citation." According to 29 CFR §1903.19 there are five steps to the abatement process:

1. Fix the hazard.

2. Certify that you've fixed the hazard.

3. Notify your employees and their representatives that you have fixed the hazard.

4. Send document(s) to OSHA saying that you have abated the hazard.

5. Tag and cited movable equipment with a warning tag or a copy of the citation.

A repeat OSHA violation can result in steep fines, loss of business

Initially, a citation from the Occupational Safety and Health Administration (OSHA) can seem like a fairly minor matter. However, employers should take OSHA violations very seriously. Corporations that do not fix a violation or that allow consecutive incidents may receive a repeat violation for OSHA safety regulations.

The fines for a repeat violation of an OSHA safety regulation can range between $5,000 and $70,000. The fine is per violation; a citation may contain several violations. OSHA considers a hazard to be a repeat violation if the employer was cited for the same or a similar violation within the past five years. 

Beyond OSHA: legal problems can snowball after workplace accidents

After a workplace accident, an employer or jobsite may be inspected by an officer from the Occupational Safety and Health Administration (OSHA). Most employers wait until OSHA issues a citation for one or more violations, prepare to pay the fine and hope to return to business as usual.

Waiting is exactly what a veteran OSHA attorney will tell you that an employer should not do. When it comes to the financial and legal impact of a workplace accident, an OSHA citation is merely the tip of the iceberg. 

What is the Severe Violator Enforcement Program?

In 2010, the Occupational Safety and Health Administration (OSHA), introduced the Severe Violator Enforcement Program. The program, shortened to SVEP, is aimed at what OSHA terms "recalcitrant employers" who show they are indifferent to worker safety by receiving citations for violations that are considered willful, repeated or failure-to-abate significant hazards.

SVEP replaced a program whose effectiveness and efficiency had been criticized by government auditors. The program was created to focus on increased inspections of employers who meet the criteria for the program. According to OSHA, an employer may be placed in the program for one of the following reasons:

OSHA's five-step abatement process

For an employer who has been cited for an OSHA violation, the cost and process of fixing the hazards that OSHA identified can be more challenging than handling the fine and other issues associated with the citation itself. OSHA requires employers to abate hazards and has identified a five-step process for correcting and showing the hazards have been corrected.

The steps include:

  • Fix the hazard. OSHA requires hazards to be corrected quickly. If a hazard will take more than 90 days to correct, you may be required to have an abatement plan.
  • Certify in a letter that you have corrected the hazard. The letter must include information about the inspection and citation numbers of each violation, a statement of how and on what date the hazard was abated, and other information.
  • Provide documents that verify the abatement has been completed.
  • Notify employees who were exposed to the hazard. The notification should contain the same information that OSHA received.
  • Tag movable equipment that has been cited to warn employees of the hazard.

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