Document, Document, Document: Dealing with an OSHA Citation Before it Occurs
The saying “the best defense is a good offense” rings true in matters of OSHA law and regulatory compliance. For employers subject to workplace safety standards, the best approach to dealing with OSHA violations and citations is to put in the work before they occur, and have a sound and comprehensive compliance plan in place before OSHA arrives. While this concept may be simple enough, it is all too often neglected by employers who do find themselves facing citations and serious consequences for issues that could have been prevented with due diligence up front.
At Hendershot, Cowart & Hisey, P.C., our experience in the area of OSHA defense means that we have represented employers from a range of industries who come to us after receiving citations, including serious and high-stakes citations that can compromise the success and future of their businesses. Because we know how to defend employers against OSHA citations, we also know what OSHA looks for, how they conduct inspections, and how employers commonly fail to prevent citations.
Document Retention & Recordkeeping: Preparation for OSHA Inspections
Maintaining organized and adequate records is vital, especially in the event that OSHA comes knocking on your door. Proper documentation can be enormously helpful for several reasons, as it can:
- Provide evidence of comprehensive compliance programs
- Indicate continued and effective employee training
- Assist in the development of defense strategies should alleged violations result in citations
During inspections, OSHA will make requests for various documents and records. Although controlling the flow of information is important when responding to requests, so is providing complete and accurate documentation that shows an employer’s compliance efforts, and their compliance with any applicable document retention requirements.
Examples of OSHA regulations requiring document retention include:
- Lockout / Tagout (LOTO) procedures, affected employees, and certification of periodic inspections performed at least annually. Records of LOTO procedure training must be retained for one year or until new certifications are issued, though it is an accepted best practice to retain records for the entirety of a worker’s employment.
- Exposure to Occupational Noise programs, reports of hearing loss experienced by employees, noise surveys / exposure measurement records which must be retained for two years, and audiometric tests retained for the duration of a worker’s employment.
- Personal Protective Equipment (PPE) certified hazard assessments, PPE provided to workers, and employee training which should be retained for the duration of employment.
- Hazard Communication programs, assessments, notification to employees, and employee training on safety data sheets (SDS) which must be retained for employment duration and an additional 30 years for any workers exposed to a hazardous chemical.
Employers are also required to keep records on regulations such as PSM programs (Process Safety Management), EAPs (Emergency Action Plans), blood borne pathogens, permit-required confined spaces, respiratory protection, electrical safety, employee exposure records, and powered industrial trucks. Because there are many other OSHA regulations which may have requirements for document retention, and regulations where documentation may not explicitly be required but is still important to have, employers should thoroughly evaluate which regulations apply to their industry and workplace, and develop procedures for proper documentation and recordkeeping.
Other Important Things to Document
- OSHA 300 logs – The OSHA 300 log is one of the first items an inspector will ask for during an inspection. Employers must keep accurate 300 logs on worker injuries, illnesses and deaths, and should organize them and 301 Incident Report forms separately from other records OSHA does not require for documenting injuries, including internal correspondence or medical information.
- Enforcement efforts – Document all enforcement efforts, including disciplinary records and employee notifications. Enforcement documentation can be critical during an inspection, as not abiding by a safety compliance program can be worse than not having a plan at all, and may lead to willful violations.
- Management roles – Compliance officers want to see the role management takes in workplace safety and program enforcement, so be sure to document their involvement and their efforts to create, implement, evaluate, refine, and enforce compliance, and train employees.
- Engineering controls – OSHA looks to ensure employers take steps to make workplaces safe for employees, rather than trying to make the employee safe for the workplace. Document good faith efforts to implement engineering controls, including those which address noise and health-related hazards.
- Audits – Proactive compliance requires self-auditing. Safety audits, findings and identified hazards, and information about corrective steps should be documented thoroughly.
- Reported safety issues– Ignoring safety issues or complaints reported by employees can provide OSHA with sufficient reason to launch an inspection. Document these reports and actions taken, as well as any employee participation in safety efforts, such as regular meetings of safety committees, worker involvement in hazard identification, and training exercises.
- Catastrophe management policies – Disasters and tragedies can strike are a risk for nearly any industry. Ensuring your catastrophe management policies and crisis management plans are soundly structured, properly documented, and actively refined and recorded is critical to protecting workers and protecting your interests during an OSHA investigation.
What a Proactive Approach to OSHA Compliance Matters
By leveraging our insight in OSHA law and defense, our attorneys are able to provide the experienced counsel and support employers need when they make the right decision to take a proactive approach to OSHA defense and workplace safety. This includes educating our clients about the core concepts of compliance, applying OSHA law to the specific needs of their business and worksites, and helping them construct and implement effective compliance programs.
Given the serious impact of OSHA citations, a proactive approach to documentation and overall compliance can help reduce exposure to unwanted violations and serious consequences, including:
- Inspections – Providing compliance officers thorough documentation that speaks to an employer’s ongoing commitment to workplace safety can go a long way in avoiding additional scrutiny and OSHA inspections, as well as the expenditure of time and money it takes to deal with inspections.
- Fines – All citations other than those issued for a de minimis violation impose fines against employers. Citation fines were recently increased by OSHA after 25 years of non-adjustment, escalate by classification, and can amount to what can be devastating expenses for employers. This is especially true with citations involve willful or repeated violations (which are subject to a fine of more than $126,000 per violation), and failures to abate, which can result in $12,000+ fine each day beyond the abatement date.
- Abatement costs – OSHA citations require employers to fix workplace hazards and certify their completion. When abatement of a violation requires extensive work, costs can quickly accumulate, especially as employers forgo competitive pricing and reasonable deadlines in favor of completing abatement on time and avoiding daily fines. Ensuring compliance proactively can save considerable costs related to addressing potential hazards that can be remedied through more cost-efficient means and time rather than a mad dash.
- Litigation / liability– OSHA violations, or violative conditions and various hazards, can also open the door to the threat of litigation and liability, including potential criminal liability, workers’ compensation costs, indemnification, personal injury or death lawsuits, and even legal action from other regulatory authorities, such as the EPA.
- Lost business – Reputational harm caused by OSHA citations can threaten an employer’s business and their bottom line. This is true not only in terms of lost consumers, but also when it comes to competition among contractors and other companies for new business.
Learn How Our Texas OSHA Law Attorneys Can Help Your Business Ensure Safety & Compliance
If you have questions about ensuring OSHA compliance with the assistance of our experienced OSHA defense attorneys at Hendershot, Cowart & Hisey, P.C. or wish to discuss representation after receiving a citation, our team is available to help. Because we know these matters are often time-sensitive, we can evaluate your situation, prioritize your needs, and develop a tailored strategy for your business.
To request an initial consultation, call (713) 489-2028 or contact us online. Our attorneys are standing by to help employers throughout Texas and beyond.