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OSHA might flex its muscles

Rich Meneghello
Dolan Media Newswires

Portland, OR — A tougher Occupational Safety and Health Administration has stepped to the forefront.

After years of less-stringent, cooperative enforcement, the pendulum is swinging back toward more vigorous enforcement of OSHA standards thanks to a chorus of calls from the media, labor unions, academia and politicians.

Many point to the Democratic control in Washington, D.C., as the reason for the renewed emphasis on enforcement. But the seeds of change were planted much earlier than the last election.

In April 2007, Congress reintroduced the Protecting America’s Workers Act, which would expand coverage under the Occupational Safety and Health Act by improving protections for whistleblowers and increasing penalties for certain violators. The bill has not yet become law, but President Barack Obama supports the bill and tougher OSHA regulations.

Many analysts believe the new administration will turn its attention to workplace safety issues by the middle of the year.

With momentum building toward stricter enforcement and bigger penalties for violations, companies should prepare for a more punitive OSHA by improving safety programs and procedures; documenting discipline for OSHA violations; developing day-to-day inspections and OSHA inspection guidelines; and structuring safety plans to satisfy federal sentencing guidelines.

Employers also should educate themselves on how to control OSHA inspections and fight citations. When an OSHA compliance officer is on site, it’s important to answer questions from OSHA with brief, direct statements; disclose only the information OSHA specifically requests; and understand how to build defenses to disprove citations issued.

Finally, remember that compromise is often the best way to deal with the federal government. OSHA must issue a citation within 180 days of the initial inspection. Once a federal citation is issued, employers have 15 working days from receipt of the citation to file a Notice of Contest with the OSHA area office that issued the citation.

During the period before the notice is due, OSHA strongly encourages company officials to attend an informal conference to introduce additional evidence showing a citation was inappropriate, seek to negotiate the reduction of monetary penalties or discuss abatement dates. It is almost always worthwhile to attend the informal conference, even if it is likely an employer will have to contest a citation. Use the conference to demonstrate a commitment to safety and to obtain information about OSHA’s theories.

Also, employers often receive a 40 to 60 percent reduction in the monetary penalties for serious citations if they cooperate with OSHA and can show they have already corrected the violations or will do so within an acceptable time period.

Rich Meneghello is a partner at the Portland office of Fisher & Phillips LLP. He can be reached at 503-205-8044 or rmeneghello@laborlawyers.com.

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