OSHA RULES, REGULATIONS AND PROCESSES

VIOLATION PROCESS.pdf)



Once a violation is discovered and a citation is filed, an employer has 15 days to contest. No extensions. Employers must send a written "notice of intent to contest"

After an inspection, if a violation is found, the employer must post the citation in a conspicuous place. The citation must state the violation and explanation.

4 STEPS TO ESTABLISHING A VIOLATION.pdf):

Employers can request an "informal conference" to get a better understanding of the violation before contesting.

Once an employer does decide to contest, they can enter into a settlement agreement, after a formal or informal contest proceeding. (Most contests end in settlements.)

If a settlement is reached after an informal conference, an ISA (Informal Settlement Agreement) must be signed that will forfeit an employer's right to contest.

After settlement is complete, OSHA's retains rights to keep violations on employer's records for future inspection purposes

Corporate-wide settlement agreements refers to a OSHA enforcing health standards on facilities owned by the employer outside of the building the violation occured.

Litigation process: (If not settled) After a notice of consent is received, OSHA must file an administrative complaint with the Occupational Safety
and Health Review Commission (OSHRC.), an independent federal agency.

The complaint must describe the circumstances of the violation and must be served no later than 20 days after the notice to consent is received

(There's a six month statute of limitations, which starts after OSHA disovers the violation.)

Employees are encouraged to report any violations to OSHA they encounter. "Whistleblower provisions" were put in place to prevent employees who speak out about violations from getting fired, demoted, pay reductions, etc..

  1. The standard applies to the working conditions cited
  1. The standard's requirements were not met
  1. Employees had access to the hazardous conditions
  1. The employer knew of the hazardous conditions or could have known through the exercise of reasonable diligence

Degrees of Hazard/ Violations: Serious, Non serious, Minor

Serious: Probability of death or serious harm- amputations, bleeding, cuts

Non serious: Any violations that aren't serious or minor. Will not cause death but will have direct impact on employee

Minor: Little to no impact on health of employee

TYPES .pdf)OF VIOLATIONS:

Willful Violations: Intentional disregard or plain indifference to employee safety

**Repeat Violations: OSHA must show employer was previously cited for similar violation**

Penalties: fine of up to $250,000 for an individual and $500,000f or an organization and/or by imprisonment of 30 days to six months

Failure to Abate Citation: Employers can receive an addtional citation if they fail to correct violation before the abatement period.

Imminent Danger: OSHA can seek a federal court injuction to terminate practices if they believe death or harm could be done to an employee immediately

REPORTING AND RECORDING REQUIREMENTS

Under OSHA statute, 29 C.F.R. 1904.4, employers are required to record each work-related fatality, injury and illness using the OHSA 300 log (Record keeping does not indicate an OSHA rule was broken or anyone is at fault. )

Recording and reporting requirements depends on the size and the industry classification of the employer. Employer must also plan to be in operation for more than one year.

Injured person must be an "employee" at the time of injury and the injury must be work-related. However the employee doesn't have to be performing a specific job task when injury occured.

Except for exempt employer establishments, all employers with more than 10 employees must record all injuries, deaths and illnesses

Establishments are: “a single physical location where business is conducted or where services
or industrial operations are performed. Examples are: hotels, factory mills, and hospitals.

Injury and illness records must be kept on establishment's site.Some exceptions include: traveling salespersons and technicians.

Employers must save the *OSHA 300 log, the OSHA 301 incident report forms and the OSHA 300A annual summary.pdf)* form for five years. (Any changes must be updated in the 300 Log.

Certain injuries or illnesses must be classfied as privacy concerns, such as mental illness, sexual assault, and HIV infections

Employers must inform employees how to record injuries and illnesses.

At the end of each calendar year, employers must review 300 Log and verify the entries.

OSHA 300A is an annual summary of injuries based on the 300 Log. Must include:

the calendar year covered, the company's name, the establishment's name and address

the annual average number of employees covered by the OSHA 300 log

the total hours worked by all covered employees.

Must be posted in aonsp cicuous place no later than February 1st, and be up until April 30th

Employees, former employees, and personal representatives have the right to access to employer's records with some limitations.

Employers can be fined or penalized for not complying with OSHA's recording requirements.

Fines can be between $5-7,000 for failures to report

Fines for not properly keeping records can be $1,000 for each year employer was out of compliance.

$1,000 penalties for not filling out OSHA 301 at all (Max $7,000) or not completing (Max $3,000)

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OSHA VS STATE AGENCIES

**States.pdf)** may establish their own safety standards and guidelines with OSHA's approval

21 states have approved state plans for private and public sector workers

Standards must be at least as effective as federal standards

The relationship between OSHA and state plans has not always been smooth and OHSA may interfere and change state regulations.

OSHA is the dominating force for safety and health standards in the United States

Employers can be cited for violating a regulation outlined in the Occupational Safety and Health Act

The rules of procedures of the OSHA's statute, 29 C.F.R. Part 2200, govern two types of proceedings, formal and nonformal. The first level of adjudication is coming before the ALJ (Administrative Law Judge)

The ALJ will notify the party of the date and location of the hearing and the hearing must be posted in the work site. The cited employer may appear with or without counsel. Employees and staff members may be called as witnesses.

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Employer must retain information on violation and know what evidence OSHA is using for justification of penalty

Employers can discuss with "experts" in the field in which the violation ensues for additional information and assistance

Both parties must have discovery phases in which they figure out what evidence the other party plans to incorporate in the case.

Affirmative defenses: The employer must prove OSHA's position is incorrect. Some examples in which they can prove this are:

Greater Hazard: Proving the standard caused a greater risk complying, than not complying.

Unpreventable Employee Misconduct: 3 steps to prove that include the work rules being adequate to prevent the violation and it being effectively communicated.

Invalid Standard: Challenge the validity of a standard.