07/11/2023

An Important Safety Message for You from DBX Safety Workers’ Comp Counsel, Gary Auman

As a member of the DBX you have available to you the opportunity to contact DBX General Counsel, Gary Auman for a courtesy consultation on matters affecting your business for one half hour each month. This call can be about a variety of business related matters. One area in which you can use this opportunity is in matters arising out of OSHA inspections and citations. Your trade association places an emphasis on employers providing safe worksites for their employees, but this does not mean that you need to accept the results of an OSHA inspection as gospel.

            Perhaps the worse thing you can do after receiving an OSHA citation is to “handle it yourself” without the benefit of experienced legal counsel. This matter is brought home to me many times during each year. One of the most difficult conversations I may have with a member company is to receive a telephone call from the member AFTER they have signed a settlement agreement with OSHA concerning citations received by them even though the company representative advises me that they were cited unjustly.

            Before you even schedule an informal conference with OSHA to discuss citations received you should ALWAYS take the opportunity to speak with an experienced OSHA defense attorney to discuss your options. If you feel that your best interests will be served by attending an informal conference the attorney, after reviewing the citations and discussing them with you, should be able to provide you with an outline to guide you through the informal conference. In addition, one piece of advice I frequently give to clients and trade association members is DO NOT SIGN ANYTHING AT THE TABLE! If you are given the opportunity to settle, take the opportunity to discuss the terms of the agreement with the attorney you have consulted with. Remember the term YAHOO – “You Always Have Other Options”.

            Remember, if you settle any OSHA citations you have received just to get a lower penalty (and this may be all you can get from the area Director) the citations you accept by settling will be on your OSHA record and may well become the basis of a future repeat citation. Another difficult discussion I have (more frequently than I like) is with a company representative who has received a Repeat violation with a five or six figure penalty when they advise me that the never really committed the underlying violation three years before, bu they admitted to it to get a lower penalty and to save potential legal costs. This brings to mind an old expression from my younger days – “penny wise and pound foolish.” In addition to this, in construction your OSHA citation history, especially of serious violations, may adversely affect your ability to qualify to bid new projects or, if you get to bid, to compare you unfavorably against other bidders.

            I will cover this topic in more detail in one of my presentations at the fall convention. But, between now and then, if you have the misfortune to be cited by OSHA – PLEASE DO NOT ACT PRECIPTIOUSLY take advantage of all of the tools available to you to consider all of your options.

 WARNING     

            For those of you who took advantage of a settlement offer from OSHA which involved accepting one or more citations and safety violations for alleged fall protection violations, whether you felt you actually were in violation or not, PLEASE BE CAREFUL going forward.          

            In a bulletin prepared by my office a few weeks ago we explained the new OSHA National Emphasis Program (NEP) for fall protection and the fact that it will provide OSHA probable cause to perform a site inspection. The NEP provides that OSHA will be able to perform a site inspection of any construction site at which they observe anyone working six feet or more above the ground or the level below them, even if the person observed is wearing fall protection.

            So, the NEP will get OSHA on the site, you need to be sure that all employees on the site working more than six feet above the level below them are protected from falls in compliance with the OSHA Fall Protection Standards, Subpart M. The concern I have for you is if you admitted to a violation of any fall protection standard within the five years before any inspection, for whatever reason, and if OSHA gets on your site under the NEP and observes even one employee in violation of substantially the same standard you will be cited as a repeat offender with a maximum penalty of up to $156,259.

            Going forward this exposure to a repeat violation demonstrates why you should consult with counsel to at least discuss your alternatives any time you receive an OSHA citation. Remember that you get a telephone call or email exchange with me or any attorney at Auman Mahan & Furry for up to 30 minutes each month as a member of the DBX. A few minutes of your time may help make you aware of all alternatives available to you following an OSHA citation.