In most instances, after a construction related workplace accident or structural collapse occurs, regulatory investigations are immediately conducted by OSHA, Department of Labor, Department of Buildings, Local Municipalities, and the NYS Workers Compensation Board. It is imperative that all those involved in the construction project also immediately assess the occurrence and assess their areas of exposure to fines, violations, denial of insurance coverage, and in some instances, criminal prosecution. If an OSHA violation is issued the employer must act quickly to protect its rights.
The attorneys at Kushnick Pallaci PLLC represent all those who have received citations related to the Occupational Safety and Health Administration (“OSHA”) and are under OSHA investigations including representation before the Occupational Safety and Health Review Commission. Our attorneys guide employers every step of the OSHA violation defense, from preparing the reply to OSHA citations, to investigating the claim and guiding you through the entire OSHA violation process in New York.
What is OSHA?
OSHA refers to Occupational Safety and Health Administration. It is a Federal agency that is in place to ensure the safety and health concerns of American workers. They have developed policies and guidelines for establishing workplace safety best practices, and they train businesses on the same.
Under the Act, the Occupational Safety and Health Administration was created within the Department of Labor to:
- Encourage employers and employees to reduce workplace hazards and to implement new or improve existing safety and health programs;
- Provide for research in occupational safety and health to develop innovative ways of dealing with occupational safety and health problems;
- Establish “separate but dependent responsibilities and rights” for employers and employees for the achievement of better safety and health conditions.
- Maintain a reporting and recordkeeping system to monitor job-related injuries and illnesses;
- Establish training programs to increase the number and competence of occupational safety and health personnel;
- Develop mandatory job safety and health standards and enforce them effectively; and
- Provide for the development, analysis, evaluation and approval of state occupational safety and health programs.
In general, coverage of the Act extends to all employers and their employees in the 50 states, the District of Columbia, Puerto Rico, and all other territories under Federal Government jurisdiction. Coverage is provided either directly by federal OSHA or through an OSHA-approved state program.
As defined by the Act, an employer is any “person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political subdivision of a State.” Therefore, the Act applies to employers and employees in such varied fields as manufacturing, construction, longshoring, agriculture, law and medicine, charity and disaster relief, organized labor and private education. Such coverage includes religious groups to the extent that they employ workers for secular purposes.
The following are not covered under the Act:
- Self-employed persons;
- Farms at which only immediate members of the farm employer’s family are employed; and
- Working conditions regulated by other federal agencies under other federal statutes.
In carrying out its duties, OSHA is responsible for promulgating legally enforceable standards. OSHA standards may require conditions, or the adoption or use of one or more practices, means, methods or processes reasonably necessary and appropriate to protect workers on the job. It is the responsibility of employers to become familiar with standards applicable to their establishments and to ensure that employees have and use personal protective equipment when required for safety.
Employees must comply with all rules and regulations which are applicable to their own actions and conduct.
Where OSHA has not promulgated specific standards, employers are responsible for following the Act’s general duty clause.
The general duty clause of the Act states that each employer “shall furnish…a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
States with OSHA-approved occupational safety and health programs must set standards that are at least as effective as the federal standards. Many state plan states adopt standards identical to the federal.
How are OSHA violations found?
There are more than 200 OSHA offices in United States that employ more than 2,100 OSHA inspectors, engineers, physicians and other workers who draft OSHA guidelines and monitor for OSHA violations.
OSHA inspectors can enter and inspect construction sites at anytime (including business hours). They can check for OSHA violations with all pertinent conditions, as existing in the workplace. They can check machines, apparatus, equipment and question/collect testimonials from any employee, operators or agents.
Before the Act became effective, no centralized and systematic method existed for monitoring occupational safety and health problems. Statistics on job injuries and illnesses were collected by some states and by some private organizations; national figures were based on not-altogether-reliable projections. With OSHA came the first basis for consistent, nation-wide procedures – a vital requirement for gauging problems and solving them.
Employers of 11 or more employees must maintain records of occupational injuries and illnesses as they occur. The purposes of keeping records are to permit survey material to be compiled, to help define high hazard industries, and to inform employees of the status of their employer’s record. Employers in state plan states are required to keep the same records as employers in other states.
OSHA recordkeeping is not required for certain retail trades and some service industries. Exempt employers, like nonexempt employers, must comply with OSHA standards, display the OSHA poster, and report to OSHA within 8 hours any accident that results in one or more fatalities or the hospitalization of three or more employees.
If an on-the-job accident occurs that results in the death of an employee or in the hospitalization of three or more employees, all employers, regardless of the number of employees, must report the accident, in detail, to the nearest OSHA office within 8 hours.
Imminent danger situations are given top priority. Such is a condition where there is reasonable certainty a danger exists that can be expected to cause death or serious physical harm before the hazard can be eliminated through standard enforcement. Priority is also given to the investigation of fatalities and hospitalization of employees and to employee complaints of alleged violation of standards or unsafe or unhealthy working conditions.
What happens when an OSHA violation is found?
OSHA inspectors can issue a citation pertaining to the OSHA violations. There may be a penalty of up to $129,336 and criminal charges.
These are the types of violations that may be cited and the penalties that may be proposed:
- Other Than Serious Violation – An OSHA violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm. A proposed penalty of up to $12,934 for each violation is discretionary. A penalty for an other-than-serious violation may be adjusted downward by as much as 95 percent, depending on the employer’s good faith (demonstrated efforts to comply with the Act), history of previous violations, and size of business. When the adjusted penalty amounts to less than $100, no penalty is proposed.
- Serious Violation – An OSHA violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A mandatory penalty of up to $12,934 for each violation is proposed. A penalty for a serious violation may be adjusted downward, based on the employer’s good faith, history of previous violations, the gravity of the alleged violation, and size of business.
- Willful Violation – An OSHA violation that the employer knowingly commits or commits with plain indifference to the law. The employer either knows that what he or she is doing constitutes a violation, or is aware that a hazardous condition existed and made no reasonable effort to eliminate it.Penalties of up to $129,336 may be proposed for each willful violation, with a minimum penalty of $5,000 for each violation. A proposed penalty for a willful violation may be adjusted downward, depending on the size of the business and its history of previous violations. Usually, no credit is given for good faith.If an employer is convicted of a willful violation of a standard that has resulted in the death of an employee, the offense is punishable by a court-imposed fine or by imprisonment for up to six months, or both. A fine of up to $250,000 for an individual, or $500,000 for a corporation, may be imposed for a criminal conviction.
- Repeated Violation – A violation of any standard, regulation, rule, or order where, upon reinspection, a substantially similar violation can bring a fine of up to $129,336 for each such violation. To be the basis of a repeated citation, the original citation must be final; a citation under contest may not serve as the basis for a subsequent repeated citation.
- Failure to Abate Prior Violation – Failure to abate a prior violation may bring a civil penalty of up to $7,000 for each day the violation continues beyond the prescribed abatement date.
- De Minimis Violation – De minimis violations are violations of standards which have no direct or immediate relationship to safety or health. Whenever de minimis conditions are found during an inspection, they are documented in the same way as any other violation, but are not included on the citation.
Additional violations for which citations and proposed penalties may be issued upon conviction:
- Falsifying records, reports or applications can bring a fine of $10,000 or up to six months in jail, or both.
- Violations of posting requirements can bring a civil penalty of up to $7,000.
- Assaulting a compliance officer, or otherwise resisting, opposing, intimidating, or interfering with a compliance officer while they are engaged in the performance of their duties is a criminal offense, subject to a fine of not more than $5,000 and imprisonment for not more than three years.
If an OSHA citation is received, you only have 15 days to inform the OSHA Area Director that you contest the Citation, the abatement demanded and the proposed penalty. You have the right to request an Information Conference to further understand the scope of the Citations. Attending an information conference does not toll the 15 day period. It is best to consult a lawyer experienced in handling OSHA claims to represent the case according to the rules and procedures.
Employers have certain responsibilities and rights under the Occupational Safety and Health Act of 1970.
OSHA publishes a checklists that provides a list of of many of these. Employer responsibilities and rights in states with their own occupational safety and health programs are generally the same as in federal OSHA states.
As an employer, you must:
- Meet your general duty responsibility to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees, and comply with standards, rules and regulations issued under the Act.
- Be familiar with mandatory OSHA standards and make copies available to employees for review upon request.
- Inform all employees about OSHA.
- Examine workplace conditions to make sure they conform to applicable standards.
- Minimize or reduce hazards.
- Make sure employees have and use safe tools and equipment (including appropriate personal protective equipment), and that such equipment is properly maintained.
- Use color codes, posters, labels, or signs when needed to warn employees of potential hazards.
- Establish or update operating procedures and communicate them so that employees follow safety and health requirements.
- Provide training required by OSHA standards (e.g., hazard communication, lead, etc).
- Report to the nearest OSHA office within 8 hours any fatal accident or one that results in the hospitalization of three or more employees.
- Keep OSHA-required records of work-related injuries and illnesses, and post a copy of the totals from the last page of OSHA No. 200 during the entire month of February each year. (This applies to employers with 11 or more employees.)
- Post, at a prominent location within the workplace, the OSHA poster (OSHA 2203) informing employees of their rights and responsibilities. (In states operating OSHA-approved job safety and health programs, the state’s equivalent poster and/or OSHA 2203 may be required.)
- Provide employees, former employees and their representatives access to the Log and Summary of Occupational Injuries and Illnesses (OSHA 200) at a reasonable time and in a reasonable manner.
- Provide access to employee medical records and exposure records to employees or their authorized representatives.
- Cooperate with the OSHA compliance officer by furnishing names of authorized employee representatives who may be asked to accompany the compliance officer during an inspection. (If none, the compliance officer will consult with a reasonable number of employees concerning safety and health in the workplace.)
- Not discriminate against employees who properly exercise their rights under the Act.
- Post OSHA citations at or near the worksite involved. Each citation, or copy thereof, must remain posted until the violation has been abated, or for three working days, whichever is longer.
- Abate cited violations within the prescribed period.
As an employer, you have the right to:
- Seek advice and off-site consultation as needed by writing, calling or visiting the nearest OSHA office. (OSHA will not inspect merely because an employer requests assistance.)
- Be active in your industry association’s involvement in job safety and health.
- Request and receive proper identification of the OSHA compliance officer prior to inspection.
- Be advised by the compliance officer of the reason for an inspection.
- Have an opening and closing conference with the compliance officer.
- Accompany the compliance officer on the inspection.
- File a Notice of Contest with the OSHA area director within 15 working days of receipt of a notice of citation and proposed penalty.
- Apply to OSHA for a temporary variance from a standard if unable to comply because of the unavailability of materials, equipment or personnel needed to make necessary changes within the required time.
- Apply to OSHA for a permanent variance from a standard if you can furnish proof that your facilities or method of operation provide employee protection at least as effective as that required by the standard.
- Take an active role in developing safety and health standards through participation in OSHA Standard Advisory Committees, through nationally recognized standards-setting organizations and through evidence and views presented in writing or at hearings.
- Be assured of the confidentiality of any trade secrets observed by an OSHA compliance officer during an inspection.
- Submit a written request for information on whether any substance in your workplace has potentially toxic effects in the concentrations being used
Who can help with OSHA violation representation in NY?
It is important to secure help from attorneys experienced with OSHA violation representation. Employers should consult with attorneys immediately after receiving a citation from OSHA, as early action is very important in such cases. It is important to consider the procedural and technical pitfalls during OSHA representation in NY to avoid heavy fines/criminal charges.
The attorneys at Kushnick Pallaci PLLC can work with clients for OSHA violations, OSHA claims and OSHA representation in NY. They have experienced lawyers with the expertise required to reduce the OSHA violation and/or penalty or to avoid them altogether.
Call Kushnick Pallaci PLLC at 1-888-KUSHLAW (587-4529) or (631) 752-7100 for free initial consultation and guidance or contact us here.