I. Purpose and Application of OSHA

1. History and Applicability of OSHA

The Occupational Safety & Health Act of 1970 ( OSH Act ) was signed into law December 29, 1970. The Occupational Safety & Health Administration ( OSHA ) began operations on April 28, 1971. OSHA s first standards were promulgated May 29, 1971. The OSH Act was passed to assure, so far as possible, every working man and woman in the nation safe and healthful working conditions and to preserve our human resources. See 19 U.S.C. 651, also known as the General Duty Clause.

The OSH Act applies to all employers and their employees in all fifty states, the

District of Columbia, Puerto Rico and all other territories under federal government jurisdiction. Under the OSH Act, an employer means a person engaged in a business affecting commerce who has employees, but does not include the United States (not including the United States Postal Service) or any state or political subdivision of a state. 29 U.S.C. 652(5).

OSHA regulations apply either directly through the federal OSHA program or through a federally approved OSHA state program. Any state may submit a state OSHA plan, which the federal Secretary of Labor shall approve if it is at least as effective as the OSH Act. 29 U.S.C. 667. The following twenty-six states and territories currently

have OSHA-approved safety and health plans: Alaska, Arizona, California, Connecticut, Hawaii, Iowa, Idaho, Indiana, Kentucky, Maryland, Michigan, Minnesota, North Carolina, New Jersey, New Mexico, Nevada, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Virginia, Virgin Islands, Vermont, Washington, and Wyoming.

Most states have adopted plans that are identical to the federal standards and have procedures similar to the federal system. However, there are some differences between the federal system and OSHA-approved states plans. This paper focuses on federal standards and regulations. If you practice in a state with an OSHA-approved plan, you should be cognizant that your state may have slightly different standards and regulations than those discussed in this paper.

2. Who is the Employer? The

Issue of Multi-Employer Work Sites

Construction sites often involve multiple employers working alongside or with one another. The prospect thus exists for an employer s violation of an OSHA standard to cause injury to another company s employee working at the same job site. OSHA may penalize an employer for exposing another company s employee to a hazard. See Brennan v. OSHRC, 513 F.2d 1032 (2nd Cir. 1975). In Brennan, OSHA penalized a subcontractor at a construction site for violating OSHA regulations by leaving construction materials near the edge of an elevated, open-sided floor, above workers employed by other subcontractors. On appeal from the citation, the United States Occupational Safety & Health Review Commission (

OSHRC ) found no violation because the subcontractors own employees were not exposed to any danger. OSHA appealed the OSHRC s finding to the Second Circuit. The Second Circuit found that the General Duty Clause, which provides that employers must comply with Occupational Safety & Health Regulations promulgated under the Act, was not limited to its own employees exposure to a hazard. See Brennan, at 1037-38. The Brennan court held that an employer may be cited if anyone in an area under that employer s control was exposed to a regulation violating hazard. See Brennan at 1038.

Subsequent to Brennan, the OSHRC has further articulated an employer s obligations to other

employers workers at multi-employer construction sites. The OSHRC formerly adopted the principle established by Brennan in Anning-Johnson Co., 4 O.S.H. Cas. (BNA) 1193 (1976). The principle established by Brennan was expanded to all multi-employer work sites by another OSHRC decision. See Harvey Workover, Inc. 7 O.S.H. Cas. (BNA) 1687 (1979).

The OSHRC has also expanded its definition of the type of action at multi-employer work sites that employers can be liable for when workers are exposed to hazards. In Red Lobster Inns of AM., Inc., 8 O.S.H. Cas. (BNA) 1762 (1980), the OSHRC held that an employer that could be reasonably expected to prevent or detect and abate violations due to its

supervisory authority and control over the work site, may be liable for OSHA violations which occur on the work site. Thus, a general contractor, or other employer with control over a work site, may be subject to citation even though its employees did not actually cause the hazard for which the OSHA citation was issued.

The OSHA Field Inspection Reference Manual contains standards for multi-employer work sites. See Multi-Employer Citation Policy, OSHA Instruction CPL 2-0.124 (December 10, 1999). The Field Inspection Reference Manual lists the following four categories of employers who are subject to citation:

A. The Creating Employer:

The Creating Employer is the employer that caused a hazardous condition that violates an OSHA standard.

An employer that does so may be cited even if the only employees exposed to the hazard are those of other employers at the work site.

Example:

Employer Host operates a factory. Host contracts with company K to service machinery. Host fails to cover drums of a chemical despite K s repeated request that it do so. This results in K s employees exposure to airborne levels of the chemical that exceeds the Permissible Exposure Limit.

Analysis:

Step One: Host is the Creating Employer because it caused employees of K to be exposed to the air contaminant above the Permissible Exposure Limit.

Step Two: Host failed to implement measures to prevent the accumulation of the air

contaminant. It could have met its OSHA obligation by implementing the simple engineering control of covering the drums. Having failed to implement a feasible engineering control to meet the Permissible Exposure Limit, Host is citeable for the hazard.

B. The Exposing Employer:

An Exposing Employer is one whose own employees are exposed to the hazard. If the Exposing Employer also created the violation, it likewise may be cited for the violation as a Creating Employer. If the violation was created by another employer, the Exposing Employer is citeable if it: (1) knew of the hazardous condition or failed to exercise reasonable diligence to discover the condition; and (2) failed to take steps consistent with its authority

to protect its employees.

If the Exposing Employer has authority to correct the hazard, it must do so. If the Exposing Employer lacks the authority to correct the hazard, it is citeable if it fails to do each of the following: (1) ask the creating and/or controlling employer to correct the hazard; (2) inform its employees of the hazard, and; (3) take reasonable alternative protective measures.

In extreme circumstances (e.g., immanent danger situations), the Exposing Employer is citeable for failing to remove its employees from the job site to avoid the hazard.

C. Correcting Employer:

The Correcting Employer is one who is engaged in a common undertaking, on the same work site as the Exposing Employer, and

is responsible for correcting a hazard. This usually occurs where an employer is given the responsibility of installing and/or maintaining particular safety/health equipment or devices.

D. The Controlling Employer:

The Controlling Employer has general supervisory authority over the work site, including the power to correct safety and health violations itself, as well as require others to correct them. Control can be established by contract or, in the absence of explicit contractual provisions, by exercise of control in practice. A Controlling Employer must exercise reasonable care to prevent and detect violations on a job site. The extent of the measures that a Controlling Employer must implement to satisfy this duty of reasonable care is less than what

is required of an employer with respect to protecting its own employees. This means that the Controlling Employer is not normally required to inspect for hazards as frequently or to have the same level of knowledge of the applicable standards or of trade expertise as the employer it has hired.

II. OSHA Inspections

The OSH Act authorizes OSHA to conduct workplace inspections and investigations to determine whether employers are complying with standards issued by OSHA for safe and healthful workplaces.

1. Inspection Priority

There are one hundred eleven million (111,000,000) workplaces covered by the OSH Act. See OSHA Publication 2098, 2002 (Revised). Since OSHA cannot inspect every workplace covered by the OSH Act, it has established a

system of inspection priorities.

A. Immanent Danger

Immanent danger situations receive top priority. An immanent danger is any condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately or before the danger can be eliminated through normal enforcement procedures.

B. Catastrophes and Fatal Accidents

Accidents resulting in a death or hospitalization of three or more employees receive second priority. The employer must report such catastrophes to OSHA within eight hours of the occurrence.

C. Complaints and Referrals

Formal employee complaints of unsafe or unhealthful working conditions and referrals from any source about a workplace hazard receive third priority.

D. Programs Inspections

Inspections aimed at specific high-hazard

industries, including the construction industry, workplaces, and occupations receive fourth priority.

E. Follow Up Inspections

Follow-up inspections to determine if the employer has corrected previously cited violations receive fifth priority.

2. Preparing for an OSHA Inspection

Inspections are generally conducted without advance notice. When notice is given, it is generally given less than twenty-four hours before the inspection. Preparation for an OSHA inspection should therefore occur well in advance of OSHA s arrival at the job site. Counseling clients, the following suggestions may be useful:

A. Maintain Records

OSHA places special importance on posting and record keeping requirements. Employers should maintain complete OSHA records. The OSHA 300, OSHA 300-A and OSHA 301 forms, which detail

recordable injuries or illnesses, as well as the employer s Hazard Communication Program, should be maintained and posted in compliance with OSHA requirements.

B. Monitor Developments

Monitor developments in the law to ensure that all applicable health and safety programs are being followed. OSHA regulations change as OSHA focuses on new perceived hazards on job sites. These standards are often motivated by OSHA census data concerning workplace injuries.

C. Designate a Coordinator

A company employee should be designated as the health and safety coordinator responsible for developing and implementing OSHA plans for the job site.

D. Implement Incentives

Implement incentives for employees to follow OSHA guidelines, and enforce disciplinary procedures when employees refuse to comply with the procedures.

E. Know the Statistics

Know the statistics for injury and death in your client s industry. OSHA is required to maintain statistics on work injuries and illnesses. 29 U.S.C. 673(a). Based on the information gathered, OSHA releases an annual list of most violated workplace safety and health standards. Many of the standards frequently on the list are routinely encountered on typical construction job sites. The 2005 list of most violated standards included scaffolding (29 C.F.R. 1910.1200), fall protection (29 C.F.R. 1926.501), hazard communication, including failure to develop and maintain a written safety program (29 C.F.R. 1910.134), lockout/tag out (19 C.F.R. 1910.147), and ladders (29 C.F.R.

1910.1053).

The top ten most violated standards generally account for approximately 50% of the citations issued in a given year. Concentrating on compliance with those standards is a good way for a company to greatly reduce the likelihood of receiving an OSHA citation.

3. Notice and Authority to Inspect

A. Authority

An OSHA compliance officer may enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures,

machines, apparatus, devices, equipment, and materials therein, to question privately any such employer, owner, operator, agent, or employee. 29 U.S.C. 657(a).

B. Notice

Inspections are generally conducted without advance notice. 29 C.F.R. 1903.6. Under special circumstance notice may be provided to the employer, but such notice will normally be less than twenty-four hours.

C. Warrants

OSHA may not conduct warrantless inspections without the employer s consent. See Marshall v. Barlow, 436 U.S. 307 (1978). A warrant is not required when OSHA receives employer consent, when premises are in open view to the public, or where there is immanent danger.

If the OSHA compliance officer arrives at the job

site without a search warrant, the employer may deny access to the job site thereby delaying the inspection process. Obtaining the warrant generally takes a couple of days. However, it is often suggested that employers who require OSHA to take this additional step are more likely to receive a citation once the inspection is concluded.

4. Inspection Process

A. Inspector s Credentials

The OSHA compliance officer is required to display official credentials when arriving at the job site. 29 C.F.R. 1903.7(a). The OSHA Inspection Manual directs the compliance officer to ask to meet an appropriate employer representative. At a construction site this will generally be a representative of the general contractor.

B. Opening Conference

During an opening conference the compliance officer should explain the purpose of the visit and the scope of the investigation. 29 C.F.R. 1903.7(a). The employer should be sure to get this information from the compliance officer in order to limit the inspection, if necessary. The compliance officer should give the employer a copy of any employee complaint that may be involved (with the employee s name deleted, if the employee requests anonymity). The compliance officer will ask the employer to select an employer representative to accompany the compliance officer during the inspection.

C. Walk Through

After the opening conference, the compliance officer will proceed through the work site to inspect work areas for

safety and health hazards. A representative of the employer may accompany the compliance officer on the inspection of the work site. 29 U.S.C. 657 (e); 29 C.F.R. 1903.8. Generally, it is best for a trained manager to accompany the compliance officer during the inspection. The compliance officer may employ reasonable investigative techniques. 29 C.F.R. 1903.7. The following are steps a compliance officer might typically take during an inspection:

Observe safety and health conditions and practices.
Interview non-supervisory employees privately.
Take photos, videotapes, and instrument readings.
Examine records.
Collect air samples.
Measure noise levels.
Survey existing engineering

controls.
Monitor employee exposure to toxic fumes, gases, and dust.
Interview supervisory employees with a member of management or an attorney present.

The employer representative, who is accompanying the compliance officer, should take photos and videotapes of all items observed and recorded by the compliance officer in advance of the encounter with the compliance officer. If possible, the employer should explain the interview process to employees in advance of the encounter with the compliance officer. The employees should be directed to answer only the questions posed by the compliance officer and to not speculate. Of course, employees should also be told to tell the truth and that no retaliation will be taken against

them for cooperating with OSHA.

a. Scope of Walk Through

The walk through may cover part or all of an establishment. If the compliance officer finds a violation in open view, he or she may ask permission to expand the inspection. The employer may refuse access if the request goes beyond the scope of the warrant.

b. Report of Unsafe Conditions

The OSHA Inspection Manual directs the compliance officer to point out to the employer any unsafe or unhealthful conditions observed by the compliance officer. The compliance officer is directed to discuss possible corrective action if the employer so desires. The employer representative who accompanies the compliance officer should take advantage of this opportunity, but should

be aware that any information provided by the employer representative during this dialogue should be based on personal knowledge. Further, the employer representative should be advised not to volunteer any information to the compliance officer, but respond only to questions posed by the compliance officer. Any information obtained from the employer representative can be used by the compliance officer as a basis for issuing a citation. Under no circumstances should the employer representative admit to an OSHA violation.

If possible, the employer should correct violations noted by the compliance officers on the spot. The OSHA Inspection Manual provides that such quick action by the employer should serve to help judge the employers good faith

in compliance. However, the noted violations may still serve as a basis of a citation.

D. Closing Conference

At the closing conference, the compliance officer will discuss with the

employer all unsafe or unhealthful conditions observed during the inspection and indicate all apparent violations for which he/she may issue or recommend a citation and a proposed penalty. 29 C.F.R. 1903.7(e). During the closing conference, the employer shall be afforded the opportunity to bring to the attention of the compliance officer any pertinent information regarding the conditions of the workplace. 29 C.F.R. 1903.7(e). The employer should be prepared to support a defense based on unpreventable employee misconduct, if applicable. The defense

requires the employer to demonstrate an effective documented and published safety program that has been consistently enforced by the employer. Written proof of enforcement measures, such as written warnings to offenders, will be needed to support the employer s defense.

E. Citations

a. Statute of Limitations

Citations must be issued with reasonable promptness but in no event may be issued after six months following the occurrence of any alleged violation. 29 U.S.C. 658(a) and (c).

b. Posting

The employer must post a copy of each citation at or near the place a violation occurred for three days or until the violation is abated, which ever is longer. 29 U.S.C. 658(b).

c. Penalties

OSHA may impose

civil penalties of up to $70,000.00. An employer who is convicted in a criminal proceedings of a willful violation may face up to six months imprisonment and fines up to $250,000.00 (or $500,000.00 if the employer is a corporation). 29 U.S.C. 666.

d. No Private Cause of Action Created

Every state and federal court which has addressed the argument that OSHA impliedly creates a private cause of action under federal law for violations of those standards have rejected the argument. See, e.g. Russell v. Bartley, 494 F.2d 334 (1974); Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323 (1974); Jeter v. St. Regis Paper Co., 507 F.2d 973 (1975); Knight v. Burns, Kirkley & Williams Construction Company,

331 So.2d 651 (Ala. 1976). The Fifth Circuit, in Jeter, found that private rights were unaffected by OSH Act:

It seems clear that Congress did not intend OSHA to create a new private cause of action, but, on the contrary, intended private rights to be unaffected thereby.

The provisions for the enforcement of OSHA and the regulations promulgated hereunder are sufficiently comprehensive to make such a private right of action

unnecessary to effectuate the congressional policy underpinning the substantive provisions of the statute. Jeter at 977.

e. Appeals Process

An employer who wishes to contest a citation must submit a written objection to OSHA within fifteen working days of receiving the citation. 29 U.S.C.

659(a). The objection will then be forwarded to OSHRC for disposition. Failure to object to a citation within fifteen days will result in the citation and proposed penalty becoming a final order of the OSHRC without further appeal. An orally expressed disagreement will not suffice. The written notification is called a Notice of Contest. The Notice of Contest must clearly identify the basis of the employer s objection to the citation and/or proposed penalty.

If an appeal of the citation is filed within fifteen days of receiving the citation, the OSHRC will afford the opportunity for a hearing. 29 U.S.C. 659(c). The employer may also appeal the rulings to the

appropriate United States Court of Appeals. In the states with OSHA approved plans, the appeal process is generally similar to Federal OSHA, but a state review board or equivalent authority may hear the case.

f. Settlement

It is the policy of OSHA to encourage settlement at any stage of the proceedings. 29 C.F.R. 2200.100(a). The area director is authorized to enter into a settlement agreement that revises citations and penalties to avoid prolonged legal disputes and results in speedier hazard abatement. See, OSHA Publication 2098, 2002 (Revised).

Patrick F. Madden
Macdonald Devin, P.C.
3800 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270-2130
(214) 744-3300
(214) 747-0942 - Facsimile
[mailto:pmadden@macdonalddevin.com]pmadden@macdonalddevin.com

Patrick Madden

graduated from the University of Texas School of Law in 1993, and joined Macdonald Devin in 1996. His practice is focused on construction, civil litigation, and client counseling on risk management and avoidance. Patrick s litigation and trial experience includes representation of clients throughout Texas and the United States. Patrick s client s include product manufacturers, retailers and service providers from a variety of industries, including construction pharmaceuticals/nutraceuticals, franchising, restaurant/food services, transportation and medical devices.