OSHA Lawyer For Businesses

OSHA Lawyer For Businesses

The Occupational Safety and Health Administration (OSHA) is a federal agency that establishes rules and handles matters relating to workplace health and safety. The agency also investigates employee complaints in order to determine whether regulations have been violated. The Occupational Safety and Health Act of 1970 set forth the regulatory framework under which Occupational Safety and Health Administration (OSHA) operates. Violations typically result in fines. The Act provides a number of rights to employees pertaining to their well-being, including protections against retaliation:

• Working conditions that are free from risk of serious harm
• Access to clear information (in layman’s terms) on potential safety and health hazards in the workplace
• Access to documentation (for review) on any illnesses or injuries pertaining to the job site
• Ability to make a confidential complaint with OSHA, and to request an inspection
• Freedom to be involved in a requested OSHA inspection
• Access to copies of any tests conducted at the work site related to potential workplace hazards
• Freedom from retaliation or discrimination in relation to OSHA complaints
The agency, created as part of the U.S. Department of Labor in 1971, has five general priorities:
1. Reports of imminent dangers
2. Fatalities & accidents involving the hospitalization of more than three workers
3. Employee complaints
4. Referrals from other government agencies
5. Targeted inspections

Whistleblower Protection Under OSHA

Unless you are self-employed or fit one of the other narrow exceptions, you have the right to file a complaint against your employer for OSHA violations. If that employer takes adverse action soon after such a complaint is filed, such as a demotion or termination, the employee may have a whistleblower claim. A whistleblower is an employee who alerts the authorities about a potential violation of the law or the public trust. Since an OSHA violation may involve any number of existing federal laws, the time limits for filing a claim depend on that particular law. For instance, a railroad worker has 180 days in which to file a complaint under the Federal Rail Safety Act, while an employee has just 30 days in which to file a Clean Air Act complaint. If any adverse action is taken after filing such a complaint, you may file a whistleblower claim with OSHA within 30 days. How to respond in the face of a safety or health hazard in the workplace largely depends on whether it poses an imminent risk. If it indeed poses an imminent risk, the employee has the right to refuse that particular work-related task. The employee also has the right to refuse to return to work until the hazard is corrected. But if there is no imminent threat, the employee first should inform the employer of the problem — in writing. If the problem is not fixed within a reasonable amount of time, or if the employee experiences significant resistance, then a complaint may be filed with OSHA (or the appropriate agency).

Remember, your employer may not legally retaliate against you for complaining of an OSHA violation. OSHA grants workers a host of rights designed to protect workers from injury, illness and death. Here is a sampling of your rights under OSHA:
• You cannot be fired or retaliated against for rightfully asserting any of your OSHA rights.
• If your workplace poses an imminent threat to your life, you have the right to refuse work.
• Your employer should inform you of your OSHA rights.
• You can get training from your employer on the health and safety standards that apply to you.
• You can request information from your employer regarding OSHA standards that apply to you.
• You can ask your employer to cure any OSHA violations without fear of retaliation.
• You can file a complaint with OSHA regarding workplace safety concerns.
• You can request an inspection of your workplace for any OSHA state plan violations.
• You are entitled to see the results of any such investigation or inspection.
If you are injured on the job, here are some of the basic steps you should follow as quickly as possible to avoid further injury to yourself and others:

• Seek medical attention: It goes without saying that your first priority is to seek any medical help that you require.
• Notify your employer of dangerous conditions: The next step is to notify your employer of the injury and of any dangerous conditions that still exist.
• File a claim for workers’ compensation: Immediately file your workers’ compensation claim to be compensated for your medical bills and other losses suffered as a result of the injury.
• If your employer doesn’t remedy the danger, file a complaint with OSHA: If your employer doesn’t remedy the threat to worker safety, file a formal complaint with OSHA and/or any related state agency. OSHA maintains a list of approved OSHA state plans.
• If you are retaliated against or fired, contact OSHA and consider a lawyer: OSHA explicitly protects workers from being retaliated against or fired. If your employer harasses you, demotes you or otherwise retaliates against you, immediately contact OSHA and consider hiring a lawyer.
What Businesses Does OSHA Inspect?
OSHA is responsible for making sure its standards are being met by businesses. Notwithstanding, it is impossible for them to inspect every business. The government schedules OSHA inspections as follows:
• Programmed Inspections: Regularly scheduled inspections that are in “high hazard” industries
• Investigation of Imminent Dangers: Any condition or practices that could reasonably be expected to cause death or serious physical harm to employees.
• Investigation of Complaints: OSHA has a responsibility to investigate complaints made by employees or cases referred to them.
• Faulty and Catastrophe Investigations: Any work-related incident that results in the death of an employee or the in-patient hospitalization of three or more employees must be investigated.

How are OSHA Inspections Conducted?

Inspections are conducted by compliance officers. They typically are done without advance notice by state compliance inspectors. Although a prior announcement isn’t necessary, workplace inspections generally must be conducted at a reasonable time, typically during the employer’s normal work hours, and in a reasonable manner. When an OSHA compliance officer arrives at your workplace to conduct an inspection, you have the right to request their warrant. If they cannot provide you with their warrant, you have the right to deny entry. OSHA may get a warrant from a judge. If you allow them entry without asking for a warrant, or let them conduct their search despite not having a warrant after you’ve asked for one, you voluntarily consent to the search. Businesses who are considered low-risk industries may be eligible for the small business exemption. Businesses with 10 or fewer employees are exempted from programmed inspections so long as they have an occupational injury lost workday rate lower than the national average. The national average is published by the Bureau of Labor Statistics.

Defenses to OSHA Violations

You can defend against a citation by showing any of the following:
• You lacked knowledge of the violation;
• Compliance with the standard was impossible or not feasible;
• The violation was caused by an unanticipated employee violation of your work rule;
• No employees were exposed to a hazard; and
• Compliance with the standard would have greater a hazard to employees.
When unsafe working conditions place the life of a worker in imminent danger, the worker should report the dangerous condition to OSHA. The worker also has the right to refuse to work if:
• There is a reasonable and good faith belief that a condition in the workplace poses an immediate and substantial risk of serious physical injury or death;
• The employer will not fix the dangerous condition;
• The immediacy of the danger does not allow enough time to report the condition to OSHA or the appropriate state agency; and
• The worker did not have a reasonable alternative.
The worker can refuse to return to work until the employer eliminates the danger or investigates and determines that no imminent danger exists. If a dangerous condition does not create the risk of imminent danger, the employee should inform the employer of the problem in writing. If the employer fails to correct the condition, the worker can file a complaint with OSHA or with the appropriate state occupational safety agency. OSHA regulations and many state laws prohibit an employer from retaliating against a worker that reports a violation. This means the employer may not fire, demote, or reduce a worker’s pay because the worker filed a complaint about unsafe working conditions. A determination of employer retaliation by OSHA can result in the reinstatement of the worker to their former position and an order for compensation for lost wages.

Types of OSHA Violations

The Occupational Safety and Health Administration, or OSHA, enforces workplace safety in the United States. Businesses and work sites are subject to periodic OSHA inspections, and employee safety complaints can also trigger OSHA inspections. These inspections may detect violations of OSHA codes that range from minor to extremely hazardous. There are six specific categories of OSHA violations, each of which carries either a recommended or a mandatory penalty.

De Minimis Violations

A de minimis violation is a technical violation of OSHA rules that have no direct impact on health or safety. It is the least serious class of violation, and inspectors do not levy fines or issue OSHA citations for these violations. Inspectors verbally inform employers about de minimis violations and list them on the employer’s case inspection file. A ladder with 13 inches between rungs rather than 12 inches is an example of a de minimis violation.

Other-than-Serious Violations

A violation of OSHA rules that would not usually cause death or serious injury but that is nevertheless related to job safety or employee health is considered an other-than-serious violation. According to the United States Department of Labor, the maximum penalty for each such violation is $13,494. However, inspectors can choose not to levy a fine, or to reduce the penalty by as much as 95 percent. Inspectors make decisions about penalties based on factors such as the size of the business and the cooperativeness of its owner. Failure to provide copies of safety regulations and failure to post required documentation in work areas are considered other-than-serious OSHA violations.

Serious Violations

When an employer knows of or should know of a situation that has a definite chance of causing serious injury or death, but does not remedy it, OSHA issues a serious violation. Inspectors must assess OSHA fines of up to $13,494 for each serious violation, but they can adjust penalties based upon the seriousness of each particular violation, as well as the employer’s previous history, the size of the business, and the good faith of the employer. Failure to ensure that employees who carry heavy loads wear steel-toe boots is an example of a serious violation.

Willful Violations

The most serious violation category is willful violations, and it is reserved for intentional violations of OSHA rules or situations that show disregard for employee health and safety. According to Health Leaders Media, the minimum penalty for each willful violation is $9,639 and the maximum fine is $134,937. If an employee is killed, the maximum fine is $10,000, six months imprisonment, or both. Occupational Health and Safety Magazine shares that more and more state prosecutors are also pressing criminal charges in these cases. An example of a serious violation might involve a fatal crushing accident because the employer did not implement adequate safety procedures for equipment that had caused prior crushing injuries.

Repeated Violation

If an employer is cited for a particular violation, and a subsequent inspection reveals another identical or very similar violation, OSHA inspectors may cite the employer for a repeated violation. The maximum fine for a repeated violation is $134,937. However, if the employer contests the original violation and is awaiting a final OSHA decision, inspectors cannot consider a violation of the same type to be a repeated violation.

Failure to Abate Prior Violation

When an employer receives a violation citation, the citation includes a date by which the employer must remedy the situation. If the employer does not do so on or before the specified date, it may be liable for a fine of $13,494 per day from the day after the specified date until it remedies the condition.

General Exclusions

Most private sector employers and their employees in all 50 states are covered under OSHA. Unless you are certain that you are exempt from the act, you should assume that the standards apply to your business. Exclusions from OSHA include self-employed individuals, churches, federal and state governments and their political subdivisions. OSHA exempt industries include businesses regulated by different federal statutes such as nuclear power and mining companies, domestic services employers, businesses that do not engage in interstate commerce and farms that have only immediate family members as employees.

Record-Keeping Exemptions

Businesses with more than 10 employees must maintain OSHA injury and illness records unless OSHA classifies the business as partially exempt. If you have fewer than 10 employees during the year, unless OSHA or the Bureau of Labor Statistics says otherwise, you do not have to keep illness and injury records. Your business might classify as partially exempt if it meets OSHA’s low-hazard requirements. In this case, you do not need to keep records of injury and illness. Low-hazard industries include retail, finance, service, real estate and insurance. All employers must report to OSHA any workplace events that caused the death or hospitalization of three or more workers.

Multiple Employers

If you and another employer share the control of your employees, when violations or injury occur, you must determine who is liable for them. To determine which employer is responsible, OSHA considers who has the power to control the employee’s duties and to change her employment conditions, who pays the employees’ wages and who the employee views as her employer.

Utah State OSHA

In Section 18 of the Occupational Safety and Health Act of 1970, states are encouraged to establish and administer their own health and job safety plans. OSHA approves and monitors state plans. As of the date of publication, 22 states have developed OSHA-approved plans. The state plan must at least be as comprehensive as the federal plan. One benefit of state programs is that they might cover certain hazards that federal law does not address. Although most states adopt plans that are identical to federal law, the state might set different criteria for businesses that are exempt from state coverage. You can obtain information on your state’s job safety and health plan via OSHA’s website OSHA sanctions can be very severe and difficult to fight. If you are facing an investigation, a local employment attorney can help you meet OSHA requirements. If you were recently inspected, consult with an employment lawyer as the inspection is the beginning of a multi-step process and you may have some defenses. If you are dealing with dangerous working conditions or have been injured on the job you will benefit from the assistance of a legal professional. A lawyer can help determine your rights and help you decide whether you need to sue or will be better off negotiating with an employer. Contact a local employment attorney and let them help guide you to a better, safer working environment.

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Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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