Cardinal Sin

January 08, 2022
By: Mark A. Lies II

Employers often receive Occupational Safety and Health Administration (OSHA) citations. Any citation the employer receives must be “abated,” meaning that the violation must be corrected to comply with the law within 20 days of a settlement unless a longer abatement term is prescribed by the settlement agreement. OSHA regularly conducts follow-up inspections to ensure abatement. An employer's failure to abate can be fined with huge penalties — $13,653 per violation, per day beyond the abatement date. For example, just 60 days after the abatement date, four citations could result in a fine of more than $3 million.

OSHA’s Hasbrouck Heights, New Jersey, Area Office recently penalized a construction employer following a series of inspections at multiple work sites. In December 2020, OSHA allegedly observed the contractor’s employees working on a residential roof project without required fall protection, the most commonly cited occupational safety issue. In January 2021, OSHA visited another work site where “inspectors identified unsafe use of ladders and failures to ensure that workers used head, eye and fall protection.” These two inspections resulted in two willful, four repeat and three serious citations, resulting in $420,521 in penalties. According to OSHA, the “contractor … agreed to make safety improvements after federal safety inspections in 2019 identified nine violations with proposed penalties of $121,687.” The employer then “violated its settlement agreement with the U.S. Department of Labor. Following inspections in 2020 and 2021, the company now faces $600,741 in penalties for 10 more violations.” The new citations include a $180,220 citation for failure to abate one serious violation.

The huge citation was coupled with a public relations disaster when OSHA released a damaging press release: OSHA Area Director Lisa Levy excoriated the contractor’s alleged “failure to honor its agreement with OSHA and knowingly put workers at risk of serious injuries or worse is inexcusable.”

Any allegedly noncompliant conditions that OSHA raises during an inspection should be promptly abated during the inspection (if possible) to reduce the probability of citations and to secure a quick fix penalty deduction. If OSHA issues citations, employers would be wise to carefully consider what citations they accept and how those citations can be abated. Abatements can be explicitly detailed in settlement agreements to ensure that all parties have the same views of abatement. Citations must be abated within 20 days of the settlement agreement becoming a final order, and additional “enhanced” abatements — that do not correspond to specific citations — should also be addressed promptly. If OSHA raises concerns about abatements that were submitted, employers should be responsive and prompt to get any issues addressed.

Under OSHA’s violation-by-violation penalty policy, a failure to abate identified in a subsequent follow-up inspection could also result in an “egregious” type of citation where OSHA decides to separately cite each piece of equipment that is noncompliant, each employee who may be noncompliant (for example, failure to wear personal protective equipment) or each policy that may be noncompliant instead of “grouping” similar instances of violations. In these circumstances, the employer will also be identified as a severe violator and become subject to OSHA’s Severe Violator Enforcement Program. Employers should consult with outside counsel on how to structure settlement agreements and avoid large failure to abate citations like the one received here.