Minimizing Exposure

What’s the best way to avoid an OSHA citation? The simple answer is to avoid anything from happening that causes OSHA to show up in the first place. But let’s say OSHA does show up. What can you do to avoid costly citations?

Before answering that question, remember that OSHA citations may cost your company beyond the penalty amount. Extra costs may include loss of reputation and negative publicity; inability to bid on certain jobs; loss of contracts and clients; increased insurance premiums and/or loss of insurance; risk of future “repeat” or “willful” violations (with penalties potentially ten times higher) and negative impact on any related civil litigation.

With all this risk, companies, including and especially crane rental companies, not only should but must take proactive measures to protect themselves. Here are some helpful measures consistent with an effective health and safety program:

Perform a Self-Assessment

The first step to minimize any future OSHA liability is to focus your attention on what OSHA cares about: safety. Take an in-depth look at your organization and assess how you are doing in terms of workplace safety.

For example, do you have a comprehensive written safety and health program, and is the program effective? In other words, have your safety policies and procedures been communicated to your employees, and are your employees following them? Has there been an increase or decrease in workplace injuries, if any?

Create and Implement an Effective Safety and Health Program

It is critical that you create an effective written safety program, one that addresses (at a minimum) the safety hazards your employees are most likely to face daily. Also important is communicating the program policies and procedures to your employees, providing employees with safety training, conducting workplace inspections to ensure compliance and disciplining employees for any misconduct.

Moreover, everything must be written, documented and records must be maintained. This would include, for example, distributing all work rules to employees in writing, maintaining any sign-in sheets generated in connection with any safety training and maintaining all disciplinary records. Be of the mindset: if it is not written down, it did not happen.

OSHA’s Safety and Health Programs in Construction (OSHA 3886, published October 2016) provides further guidance on creating an effective safety plan. Crane rental companies can also look at OSHA’s Compliance Directive for Cranes and Derricks in Construction Standard (CPL 02-01-063, published 2/11/22). Page five of that 231-page document sets forth key elements of an OSHA inspection of a crane site.

Be Prepared for an Inspection

OSHA inspections are conducted by a compliance safety and health officer (CSHO) and are usually not conducted with any advance warning to the employer. Prior to showing up, the inspector will have already researched the inspection history of the site and reviewed the operations and processes in use and the standards most likely to apply.

In short, the inspector will be prepared so you need to be prepared, too. One way to do this is to designate one employee (most likely, a safety employee) to be the company representative for the inspection. This person will accompany the inspector wherever he or she goes. As a result, there will be one consistent “voice” on behalf of the company.

Having a good representative is critical, especially considering that anything the representative tells the inspector may later be used as evidence against the company.

Of equal importance is to take detailed notes during the inspection, because they may prove critical during negotiation as well as in developing safety programs to avoid potential violations in the future.

Finally, OSHA requires that all employers maintain certain types of records. Make sure these records are in fact maintained and easily accessible. For crane rental companies, this will include — at a minimum — monthly and annual crane inspection records. Furthermore, OSHA 300 Log forms (of work-related injuries and illnesses) must be produced within four hours of being requested.

Know Your Rights and the Process

If you don’t know your rights, you cannot assert them. For starters, employers — just like people on the street and in their homes — are entitled to Fourth Amendment protection against unreasonable searches and seizures.

An OSHA inspector therefore needs one of two things to proceed with an inspection: a warrant or your consent. Since an inspector will usually arrive without a warrant, this provides an opportunity (prior to consenting) to negotiate a reasonable scope and protocol for the inspection.

In addition, the inspector will invariably request that you produce certain documents and records. Ask the inspector to put the demands in writing. You are not obligated to produce requested records on the spot except perhaps the 300 logs.

Furthermore, during the actual inspection, the inspector will walk the site, gather evidence and seek to identify potential safety and/or health hazards. Inspectors are authorized during this phase to take photographs, videos and measurements; collect environmental samples and employ other reasonable investigative techniques.

During the inspection, you have the right to take side-by-side photographs and duplicate OSHA’s measurements, sampling and other investigations. Do not hesitate to exercise these rights. OSHA inspectors know you have them.

Although an OSHA inspector may interview non-supervisory employees privately (and may insist on doing so), an employer representative, including counsel, has a right to participate in all management interviews. Employees are not required to sign a statement or the inspector’s interview notes or give video and/or audiotaped statements.

Evaluate Potential Defenses

It is important to have at least a basic understanding of certain procedural and substantive defenses to citations. Some popular defenses include:

1. the wrong employer was cited
2. unpreventable employee misconduct
3. vagueness of the standard
4. no hazard exists
5. duplicative citations
6. greater hazard posed by compliance
7. impossibility/infeasibility of compliance
8. allocation of responsibility by contract
9. violation not within the scope of employment
10. new citation not “substantially similar” to prior citation (if cited for a “repeat” citation).

The unpreventable employee misconduct defense warrants special discussion. If you can establish that an employee’s violative conduct was unknown to the employer and in violation of an adequate work rule, which was effectively communicated and uniformly enforced, then no citation should be issued. This underscores the importance of not only establishing a comprehensive and effective safety plan but also communicating the plan to employees, inspecting the site and enforcing the plan.

By seeking to incorporate the above strategies, the dual purpose of promoting safety and minimizing exposure will be served, all to your benefit and the benefit of your employees.

Michael Rubin, who has more than 20 years of litigation experience, is a recognized thought leader in workplace safety and OSHA compliance who provides comprehensive counsel on all aspects of occupational safety and health law across multiple industries. He represents employers during the OSHA inspection process and routinely litigates before the Occupational Safety and Health Review Commission and in State Plan jurisdictions.