The sword wielded by OSHA may be getting a lot mightier. The Occupational Safety and Health Administration (OSHA) is responsible for ensuring safe and healthy working conditions for American workers, and federal law gives it the power to conduct workplace inspections and punish companies that fail to meet safety standards. In an important decision issued on December 7, 2015, a federal judge ruled that OSHA could potentially require a company to conduct what is known as “enterprise-wide” abatement. This means that OSHA could force a company to not only fix hazards found at a facility inspected by OSHA, but also at all of the company’s other locations, even if those locations were not inspected. The case, involving a company called Central Transport, LLC, could ultimately have a significant impact on the way businesses respond to OSHA citations, fix violations, and improve worker safety.
Federal law authorizes OSHA to “assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.” To carry out its mission, OSHA can conduct on-site safety inspections of facilities and equipment to determine if employers are following required health and safety regulations. If, during an on-site inspection, OSHA inspectors find safety violations or specific hazards, OSHA can fine wrongdoers and require the “abatement” of hazards.
“Abatement” is the process by which companies must correct specific health and safety violations found by OSHA. Abatement requires the employer to: fix the hazard, certify that the hazard has been fixed, notify employees of the fix, send documentation to OSHA confirming the abatement, and tag cited equipment with a warning or a copy of the OSHA citation. Correctly completing all of these steps can be time-consuming and expensive.
Historically, almost all of OSHA’s abatement orders have been site-specific, meaning that OSHA orders abatement of workplace hazards only in the actual facility that was inspected. But that may be changing as a result of the Central Transport case.
The case began in 2014, when OSHA inspected Central Transport’s shipping terminal located in Billerica, Massachusetts. During the inspection, OSHA found14 violations, which included willful violations of powered industrial truck (forklift) safety standards. Ultimately, OSHA proposed a $330,800 penalty. But rather than agree to the penalty, Central Transport challenged OSHA’s findings and tried to have the violations and the penalty thrown out by a federal administrative law judge.
On January 25, 2015, OSHA struck back hard. In response to Central Transport’s challenge, OSHA argued that it should be allowed to ask the reviewing body – the Occupational Safety and Health Review Commission (known as the Commission) – to not only approve the proposed fine, but also to take the extraordinary step of ordering Central Transport to conduct “enterprise-wide” abatement of forklift safety practices at all of the company’s other 170 worksites. OSHA based its request on evidence that since 2006, Central Transport had received 11 citations for forklift safety violations – 8 of which were for repeat violations – at 11 different shipping terminals in 9 different states. Accordingly, OSHA argued that Central Transport was well aware that it needed to implement enterprise-wide measures across all of its sites to remove or repair damaged industrial trucks in order to adequately protect its workers.
On December 7, 2015, the judge issued a decision supporting OSHA’s position and rejecting Central Transport’s arguments that the case should be dismissed. The judge found that there was sufficient evidence to support OSHA’s findings and also that the Commission has the authority under the broad “other appropriate relief” clause of the Occupational and Safety Health Act to order enterprise-wide abatement in appropriate cases.
The case now goes to the Commission for an ultimate determination on OSHA’s claims. If OSHA’s enterprise-wide abatement order prevails, the decision could have a major impact on workplace safety in the United States. OSHA would be able to force companies with violations in one location to fix all violations in all locations and require proof of the abatement. As in the Central Transport case, that could mean the difference between abatement at 1 versus 170 locations, which could be staggering in terms of time and expense.
OSHA’s abatement powers are strong medicine in this respect, forcing violators to engage in a lengthy and expensive process. It would teach repeat offenders a valuable lesson about challenging OSHA’s authority, and it would encourage companies to reach mutually beneficial settlements with OSHA rather than fighting it. In addition, the threat of such an order would encourage big business to be more proactive about investing in safety and compliance programs throughout their organizations regardless of where they are located, potentially allowing them to avoid OSHA penalties, and ultimately protecting workers.
The Commission’s decision could still be appealed to a federal trial judge and up through the U.S. Court of Appeals and the U.S. Supreme Court, but such appeals can have a long and unpredictable path. Consequently, a win for OSHA before the Commission would go a long way towards encouraging companies to follow workplace safety rules and to improve the lives of American workers.
The Poirier Law Firm routinely, successfully represents injured works in industrial accidents, such as this one, where OSHA violations occur frequently. You must have a zealous advocate fighting and protecting your rights. If you or a family member has been hurt at work, call Poirier Law today for help and for a free consultation.