You and the Law



The OSHA Floodgates Open

By: Doug Ehlke

Friday, July 1, 2011

OSHA is flooding employers and worksites with new job-threatening enforcement measures, and practically eliminating partnering and voluntary program efforts. As such, it has signaled the end of any strides made toward generating significant cooperative compliance. Through reinterpretation of its penalty-proposing authority, OSHA is generating significantly more assessments and is reinterpreting cited regulatory standards beyond their scope.

Voluntary consultations bring expanded compliance conditions to worksites, but the results often are ignored by the enforcers. Mediation and settlement-type informal conferences seem treated by the OSHA agencies as breeding grounds for free enforcement discovery search for obtaining employer admissions. Some agencies have even tape-recorded conferences and then developed transcripts of employer-representative statements for use as admissions at trial. This perceived process of cooperation can backfire.

New Legislation

Washington State passed a State-OSHA program (WISHA) statutory change requiring abatement during the appeal of any citation classified as “serious,” “willful,” “repeated serious,” or “failure to abate” an alleged serious violation. Under previous WISHA law, employers were not required to abate citations until the appeals process resulted in a final settlement or order. The new abatement-during-appeal law is scheduled to go into effect this summer.

Employers with legitimate defenses to citations can petition or request a written stay of abatement during their appeal. Stay orders will be granted for “good cause” unless “based on the preliminary evidence it is more likely than not that a stay would result in death or serious physical harm to a worker,” RCW 49.17.140(4)(e). WISHA cases now may see mini-trials within the first 30 days or so after the citations are received, where the employers file for a stay or suspension of abatement under this new “expedited” ruling procedure.

New Directives

Following in the steps of its issuance of a comprehensive LO/TO directive, OSHA issued (in February 2011), “Enforcement Guidance for Personal Protective Equipment in General Industry,” CPL 02-01-050. These new directives often contain OSHA’s opinion of the case law, which may or may not be a full discussion on the applicability and scope limits of a particular standard. MF


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