OSHA Violations

1/24/2011

When the Occupational Safety and Health Act of 1970 became law, employers were mandated to provide a safe and healthful workplace for their employees. At the same time OSHA had the role to assure these conditions were being met by setting and enforcing standards, and providing training, education and assistance. Many of us are not aware of the various violations and classifications that an employer may be cited when they do not provide their employees with a safe and healthful workplace.  Below is a brief description of OSHA’s workplace violation classification.

Other-Than-Serious Violations.  This type of violation shall be cited where a very serious injury or illness would probably result due to a noted hazardous condition.  While such an incident may not have occurred, the condition, in itself, is considered to have a direct and immediate relationship to employee safety and health.

Serious Violations. A serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition, or from one or more practice, means, method, operation, or process which has been adopted or are in use, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

Willful Violations. A willful violation exists under the Act where the evidence shows either an intentional violation of the Act or plain indifference to its requirements.

Criminal/Willful Violations.  This occurs when an employer willfully violates any standard, rule, order or regulation, and that violation caused death to an employee.  Upon conviction, “the employer shall be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both; except that if the conviction is for a violation committed after a first conviction of such person, punishment shall be a fine of not more than $20,000 or by imprisonment for not more than one year, or by both."

Repeated Violations. An employer may be cited for a repeated violation if that employer has been cited previously for a substantially similar condition. 

Repeated vs. Willful.  Repeated violations differ from willful violations in that they may result from an inadvertent, accidental or ordinarily negligent act.  Where a repeated violation may also meet the criteria for willful but not clearly so, a citation for a repeated violation shall normally be issued.

Repeated vs. Failure to Abate.  A failure to abate situation exists when an item of equipment or condition previously cited has never been brought into compliance and is noted at a later inspection.  If, however, the violation was not continuous (i.e., if it had been corrected and then reoccurred), the subsequent occurrence is a repeated violation.

De Minimis Violations. De Minimis violations are violations of standards which have no direct or immediate relationship to safety or health and shall not be included in citations. The employer should be verbally notified of the violation and OSHA should note it in the inspection case file.

Below is an example of what happed to one company that repeatedly showed a disregard for the health and safety of its employees.

Recently, OSHA issued citations to a company in Florida, alleging that the company knowingly neglected to protect employees from lead exposure. The company is being cited with 32 safety and health violations, and $307,200 in total proposed penalties.

“This company was well aware of what it needed to do to protect its workers from a well-known hazard but failed to provide that protection,” said Assistant Secretary of Labor for OSHA Dr. David Michaels. “Lead exposure can cause many serious health issues including brain damage, kidney disease and harm to the reproductive system. Such a blatant disregard for OSHA’s lead standard is shameful and will not be tolerated.”

The company-in-question is a lead recycling and manufacturing company that produces lead products, including fish tackle, lead diving weights and lead-lined walls used in medical radiology facilities.

As a follow-up to a 2009 inspection, OSHA conducted a July 2010 inspection that resulted in four willful citations and proposed penalties of $224,000. The citations allege violations of OSHA’s lead standard including exposing workers to lead above the permissible exposure limit; not providing engineering controls to reduce exposure; failure to perform ventilation measurements; failure to provide a clean change area; and failure to provide a suitable shower facility for workers exposed to lead above the permissible level. A willful violation exists when an employer has demonstrated either an intentional disregard for the requirements of the law or plain indifference to employee safety and health.

Additionally, 21 serious citations with proposed penalties of $70,400 allege that the company failed to perform an initial exposure determination for workers who clean the facility, to conduct quarterly monitoring, to notify workers of air monitoring results, to provide appropriate protective clothing, to maintain surfaces free from lead accumulation, to properly store oxygen and acetylene tanks in the facility, properly install production equipment, and to fix or remove defective forklift trucks. A serious citation is issued when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

“The management of ….. acknowledged awareness of the OSHA lead standard and the dangers associated with lead exposure but continued to allow the hazard to exist, exposing employees to a serious health risk,” said Darlene Fossum, OSHA’s area director in Fort Lauderdale.

Three repeat citations with a proposed penalty of $11,200 have been issued, alleging that the company failed to cover electrical wires on a furnace fan motor and record injuries on the OSHA recordkeeping forms for 2008 and 2010. A repeat citation is issued when an employer previously has been cited for the same or a similar violation of a standard, regulation, rule or order at any other facility in federal enforcement states within the last five years.

Two other-than-serious citations were issued with $1,600 in proposed penalties for failing to record instances of medical removal on OSHA 300 logs, and label containers that held lead-contaminated clothing. Two additional other-than-serious citations with no monetary penalties have been issued for failing to certify forklift operators and notify the laundering facility of lead exposure dangers.

In August 2010, OSHA issued citations to a sister company, that is the primary lead supplier for the main organization. It is interesting to note that both companies have the same owner. The earlier citations alleged that the sister organization knowingly neglected to protect employees who clean gun ranges from serious overexposure to lead. This company also was cited for providing, without medical supervision, non-Food and Drug Administration-approved treatments for lead exposure. The company was cited for more than 50 violations of the lead and other standards, with total proposed penalties of $2,099,600. It is currently contesting the citations and penalties.

According to the OSH Act, the main company has 15 business days from receipt of the citations and proposed penalties to comply or contest the findings before the independent Occupational Safety and Health Review Commission.

Anyone who thinks there’s safety in numbers hasn’t looked at the stock market pages.

Irene Peter (American Author)