Some business owners think of OSHA
(Occupational Safety and Health
Administration) as a four-letter word denoting a bureaucratic entity that makes
its own arcane rules as it goes along and
unjustly punishes companies that run afoul
of them. In reality, OSHA plays a vital roll
in overseeing the health and safety of
workers in virtually all businesses.
Business owners often overlook that role.
Their misconceptions often derive from
their unfamiliarity with OSHA’s mission,
standards and organization. Business owners who learn to work with OSHA might
ultimately find that it can actually help
them protect their employees from the
dangers of the workplace — and save them
time and money.
Smart Business spoke with George R.
Carlton, Jr., of Godwin Pappas Ronquillo
LLP to learn how companies can interact
with OSHA, what resources are available
to them to help them do so and how they
will benefit in the process.
Who comes under OSHA’s jurisdiction?
OSHA covers just about every type of
business and employee in the United
States. There are a few exceptions, such as
miners, some public employees, self-employed people and businesses that fall
into the U.S. Coast Guard’s jurisdiction.
OSHA’s wide jurisdiction means that most
companies should be knowledgeable
about its standards, regulatory procedures
and inspection programs. It is important
for companies to recognize that individual
state OSHA programs have their own sets
of standards, procedures and levels of
compliance. In any case, waiting for OSHA
inspectors to show up at a company’s door
in response to a death or accident is not an
advisable business strategy.
How can companies prepare to work with
OSHA?
There are several steps they can take on
their own or with partners. For example,
they can take advantage of OSHA’s training
and education programs, consult with
health care specialists and other professionals such as engineers to develop and
implement workplace safety and first aid
training programs, and stay updated on
new and revised OSHA procedures and
standards. Attorneys can be valuable partners in several of these efforts.
What can attorneys do to help employers?
One primary service that attorneys can
provide is legal assistance if a company is
faced with an OSHA-initiated action. For
example, an attorney can accompany
OSHA personnel during their inspections,
which can be critical if a company has
experienced a fatality on its premises.
Attorneys can be helpful in court proceedings as well. Few people may know it,
but OSHA has its own judicial system.
Relatively few attorneys are familiar with
the system, so it behooves companies to
partner with law firms and attorneys that
specialize in OSHA cases. If a citation is
received by a company, it is important to
get an attorney involved as soon as possible. If there is a workplace fatality or serious injury where OSHA shows up for an
inspection, it is vital to have an attorney
involved as soon as possible. It is at the initial inspection that OSHA begins to gather
information that can lead to the issuance of citations. The information gathered by
OSHA can also come into play in any subsequent civil lawsuit for damages arising
out of the accident.
Attorneys can also explain to companies
how OSHA works; define the different
types of violations and the fines for each
and issues regarding abatement of the
alleged hazard; research OSHA-related
case law, which is not always easy to find;
help develop workplace safety programs;
and assist in maintaining and completing
the required logs and other paperwork.
They can also specify what specific
requirements companies have to follow.
For instance, construction companies have
to adhere to standards contained in volume 29 Code of Federal Regulations Part
1926, which can be complex, whereas
other companies in different types of businesses may not.
The key to all this assistance is for companies to start working with attorneys
before they are subjected to OSHA intervention involuntarily due to workplace violations.
How do companies benefit from working with
attorneys?
They can save themselves time and
money. OSHA inspections and paperwork
requirements can fill up a lot of time, which
employees might be able to use for productivity. Fines for OSHA violations can be
hefty and can range from zero to $70,000,
depending on whether violations fall into
an ‘Other-than-serious,’ ‘Serious,’ ‘Repeat’
or willful violation’ category. In some
cases, where violations that OSHA classifies as ‘willful’ lead to workers’ deaths, jail
terms can be assessed. That is not common, though. These fines and penalties
often can be avoided or reduced if companies are prepared to eliminate the work-place safety hazards that led to them in the
first place.
GEORGE R. CARLTON, JR. is partner and chair, Mass Tort
Litigation Practice with Godwin Pappas Ronquillo LLP’s Dallas
office. Reach him at [email protected] or (214) 939-4421.
