By James Curtis
OSHA Hitting Employers With Significant “Repeat” Penalties
On July 13, 2011, OSHA issued $104,000 in serious and repeat citations to a national retail chain for workplace hazards relating to ladder use, storage shelving, emergency exit routes and electrical panels, many routine safety issues encountered in the hospitality industry. Significantly, $99,000 of the penalties were for violations classified as “Repeat.” This chain is not alone. Under the current administration OSHA is increasingly using “Repeat” classifications as a tool to drive up OSHA penalties. A “Repeat” citation can be issued where the employer had a citation in the previous five years for a “substantially similar” hazard. Because “Repeat” citations can carry a penalty of up to $70,000 per violation, (whereas the maximum penalty for a serious violation is $7,000) knowing your Company’s OSHA history and avoiding repeated violations is becoming increasingly important.
Even where there is no merit to an OSHA citation employers often choose not to contest minor OSHA citations because the monetary penalty is small and the employer believes that it will cost less to simply pay the fine and move on. What many employers fail to appreciate is that these minor citations will be used as the basis for a Repeat citation with a ten fold penalty increase if a similar violation occurs at another company facility anywhere in the country. For example, in the above mentioned case, the prior violations had occurred three years earlier at the chain’s facility in Chicago, Illinois and the current violations were at a facility in Georgia. Anyone even remotely familiar with operating a business knows that local management at a Chicago facility is unlikely to have substantive interaction with the operations at a different facility half way across the country. Yet, because the Company is a single “employer,” it is irrelevant whether there are two facilities or 200 facilities. Further, it is irrelevant whether local management had any knowledge of the prior violation at the other facility. If a hazard is “substantially similar” to a prior citation, the OSHA can legally issue a Repeat citation whether or not management was aware of the prior citation at the other facility. Obviously, large employers with multiple facilities around the country are particularly at risk in this situation.
Additionally, OSHA can look back five (5) years in an employer’s history to find a prior citation upon which to base a “Repeat” citation. Accordingly, there is a very long tail on the potential for a “Repeat” citation. Employers should be especially aware of this when there is a change of management personnel at a facility. The new management will likely be unaware of the Company’s past OSHA history unless they are specifically briefed on prior citations when they take over.
Accordingly, we strongly recommend that all OSHA citations received at any facility be reviewed for accuracy. Where OSHA got it wrong, it is well worth the effort to go through the process of having the citation either modified or deleted in its entirety. Where OSHA got it right and the facility must take the citation, ensure that the citation has been communicated to all of the other facilities so that they can ensure that similar hazardous conditions do not exist at their facility and thereby avoid the “Repeat” citation trap.
Ergonomics Back in Play
As part of its increased enforcement efforts, OSHA has begun targeting ergonomic hazards, especially in the hospitality industry. In response to union complaints, OSHA recently opened numerous investigations across the country at a major hotel chain. OSHA was specifically investigating allegations that housekeepers were exposed to repetitive motion injuries. We have also seen OSHA investigating ergonomic/carpel tunnel injuries for clerical staff working at computer stations. These investigations come as no surprise as OSHA has long identified ergonomic hazards, especially back injuries, as one of the most common workplace injuries. While federal OSHA does not have a specific ergonomics standard in place it does issue citations for ergonomic hazards under the general duty clause. California is the only jurisdiction that has a specific ergonomics standard and has been using it with increasing frequency.
In response to OSHA’s increased ergonomics enforcement activity, we strongly recommend that hospitality employers review their ergonomic safety policies, workers compensation histories and OSHA logs to ensure that all ergonomic hazards are being properly addressed. Where the OSHA logs and/or workers compensation histories reveal trends in ergonomic injuries, the employer should analyze the trends for their root cause and implement a strategy to prevent such injuries going forward.