The Occupational Safety and Health Administration ("OSHA") imposes an obligation on employers to create and maintain a safe worksite for its employees. The Occupational Safety and Health Act (the "OSH Act" or the "Act") creates civil and criminal liability for employers who violate standards proscribed by the OSH Act. Moreover, recent developments in the law expose employers to greater burdens in remedying an OSHA citation and subject individuals to possible prison time. Legal and safety teams need to work together to create a safe workplace and minimize an employer's exposure to OSHA citations, prepare a defense against an alleged OSHA violation, and prevent possible criminal penalties.

Knowing the Business, the Risks, and the Priorities

Whether your safety team is using inside legal counsel or outside legal counsel, it is important that both teams are on the same page. Employers have various agendas and goals when it comes to implementing a safety culture, handling OSHA inspections, and contesting citations. For example, for some employers the most critical part of the OSHA citation is not the dollar amount per se, but the corresponding classification. For example, a number of Repeat citations at the same worksite or related to the same regulation can in time result in a Willful violation. For many employers, the negative press release or placement on the Severe Violator Enforcement Program is as significant or more significant than the dollar amount associated with the citation. Thus, the legal team needs to know what the priorities are and negotiate accordingly. The Secretary of Labor ("Secretary") may be willing to reduce the classification as part of a settlement agreement. Likewise, changing the language of the citation itself to be more specific could in the future help prevent or defend against a Repeat classification.

Safety and legal must work together from time to time to bench-mark and observe trends - these trends may occur per violation or per region for example. Observing these trends can be especially important to proactively devise abatement measures and avoid OSHA's enterprise wide relief orders as discussed below.

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