Written by: John Ho, Cozen O'Connor
For Canadian businesses expanding into the United States whether by opening a new facility or a merger and acquisition, there are a whole host of employment law and related issues that need to be considered in the due diligence process including workplace safety and health issues. As a starting point, here are the Top 10 things these businesses should know about OSHA.
- Know your jurisdiction. The Occupational Safety and Health Act ("Act") covers most private sector employers and their workers. The Act encourages states to develop and operate their own job safety and health programs and precludes state enforcement of OSHA standards unless the state has an OSHA-approved State Plan. Twenty-six states, Puerto Rico, and the Virgin Islands have OSHA-approved State Plans. A list can be found here. In order to properly understand your legal obligations, businesses first need to understand what laws they are covered by. Although the state law plans often mimic federal OSHA and must be at least as protective as the Act, they can also impose significant additional obligations.
- OSHA's On-Site Consultation Service. OSHA offers a no-cost consultation program that provides employers with an opportunity to find out about potential hazards at their worksites, improve their safety and health programs, and potentially qualify for a one-year exemption from routine OSHA inspections. There are a number of considerations whether a business elects to use this service or retain independent safety and health consultants to perform workplace assessments but businesses should be aware of this option. Additional information can be found here.
- Criminal Penalties. The Act provides criminal liability against employers who willfully violate a safety standard where that violation causes the death of any employee. Although criminal prosecution is generally not common, some statistics have shown that it has been on the rise in recent years and at a recent American Bar Association conference, high level Department of Labor representatives confirmed their commitment to using criminal prosecution in appropriate cases. Additional information on criminal liability can be found here.
- Know the Top 10 Violations. Each year, OSHA publishes the top 10 cited violations. Although the order may be subject to change year to year, the list is usually relatively consistent. For businesses beginning to implement workplace safety and health plans and practices, the top ten list can be a helpful resource on where to begin. A copy of the 2017 list can be found here.
- No Retaliation. The Act protects workers from an adverse personnel decision who complain to their employer, OSHA or other government agencies about unsafe or unhealthful working conditions in the workplace, environmental problems or who report workplace injuries and illnesses. An adverse personnel decision is interpreted very broadly and OSHA prosecutes whistleblowing complaints aggressively. Businesses should have a strong anti-retaliation policy in place.
- OSHA Penalties. Penalties can be very costly. Currently, Serous, Other-Than-Serious and Posting requirements can be cost up to $12,934 per violation. Failure to abate can be assessed up to $12,934 per day beyond the abatement date and willful or repeated violations can be accessed up to $129,336 per violation.
- The General Duty Clause. Even in the absence of a specific standard, the Act requires employers to provide their employees with a place of employment that is "free from recognized hazards that are causing or are likely to cause death or serious harm." Courts have interpreted OSHA's general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard. For example, OSHA could potentially prosecute a workplace violence incident under the general duty clause.
- It's Not Just About OSHA. Whether to contest an OSHA citation including the classification of the citations may not just be about the fiscal penalty assessed. Depending on the jurisdiction, OSHA citations may be relevant in other areas including but not limited to workers' compensation, negligence and similar type lawsuits and eligibility for bidding on certain public contracts which may ask whether businesses have violated certain labor laws.
- Be Prepared for an OSHA Inspection. In most cases, when a business has an OSHA issue, it requires immediate assistance because of an injury or fatality. Thus, is it critical for businesses to be proactive and establish an internal procedure for handling an OSHA audit. This should include addressing such questions as: (1) who should accompany the OSHA inspector; (2) should the employer ask for a warrant? (3) which employees are permitted to accompany the OSHA inspector? (4) should supervisors speak with an OSHA inspector without counsel? (5) what should the Company representative do on the OSHA walk-around inspection?
- Always Request an Informal Conference. After citations are issued, an employer has 15 working days to settle or contest citations or it generally loses the right to do so. During this period, an employer will be provided an opportunity to meet with OSHA at an informal conference and almost without exception, it should always do so. During the informal conference, employers can present evidence to help convince OSHA to, among other things, withdraw citations, reduce classifications and/or reduce penalties. It is important to have both operational and legal representatives at the informal conference as often issues such as non-admission clauses, enhanced abatement requirements and the potential for repeat violations will be discussed and/or should be considered in determining whether a settlement is the best option.