Since 1970, the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor (DOL) has set the health and safety standards that employers must follow to protect their employees from injury or illness at work. Our team, comprised of experts from our Labor and Employment Practice and our Environmental Practice, has a long history of supporting clients in dealing with these requirements at both a federal and state level, including compliance with worker safety programs in states that have been delegated implementation of OSHA’s worker safety and health program.
We regularly provide assistance with the following:
Compliance audits. Working with safety and health consultants, and our client’s own resources, we oversee and coordinate review of a facility’s safety and health program to identify any shortcomings, and assist in implementation of corrective action. This could be the most important step to take to avoid worker injury or illness, and to avoid enforcement actions by OSHA. We highly recommend involvement of counsel in compliance audits in order to establish potentially applicable legal privileges against disclosure of results or processes of a compliance audit program.
Specific questions about OSHA standards. Whether the issues arise from safety standards, hazard communication requirements, or the general duty clause of the OSH Act, we provide counsel and advice regarding standards that may be at issue in a client’s operations, and assist our clients’ understanding of what they must do to protect their workers and remain in compliance, or go beyond compliance if the client so desires.
OSHA inspections. Although inspections are often unannounced, we advise involvement of counsel, at least from a distance if an attorney’s presence is not possible or advisable, whenever OSHA conducts an inspection. Counsel’s involvement can protect against overreaching by inspectors, advise personnel on responses to inquiries of the inspectors, and assist in gathering and determining what documentation is responsive to the inspectors’ requests. Follow-up with the agency is often advisable after an inspection, and involvement of counsel early on assists in targeting the most effective follow-up. Also, OSHA inspections can span several months and involve repeated requests for documents, worker and management interviews and other matters. Establishment of counsel as the OSHA interface can be crucial in avoiding citations or minimizing penalties.
Appealing citations. Even if a proposed penalty is low, it may be that appeal of a citation is the best course. Even with a low penalty, the cost of compliance may be significant. Also, the implementation of what OSHA claims is required may be at substantial cost, and may create other hazards that are worse than those being addressed by the change. Our team has successfully handled appeals of citations for clients who seek to avoid such problems.
Other regulatory schemes. Compliance at a client’s facility may also involve other regulatory programs, including the REACH requirements of the European Union, the Emergency Planning and Community Right-To-Know Act (EPCRA), California’s Proposition 65, the federal Toxic Substance Substances Control Act, and even State and local requirements. Our team assists clients in identifying applicable regulatory programs, determining compliance actions, and overseeing implementation of any appropriate procedures and programs.
Whistleblower Complaints. OSHA handles whistleblower complaints under 23 Federal statutes, including the Federal Railroad Safety Act, the Surface Transportation Assistance Act and all of the Federal environmental laws, as well as the OSH Act. The whistleblower unit at OSHA is separate from the safety compliance unit, and operates under its own set of procedures, which differ depending on the statute under which a whistleblower complaint is made. Our OSHA practice has successfully handled numerous whistleblower complaints for our clients.
In addition to OSHA, SGR is well-versed in handling matters related to wage and hour compliance laws, the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act, the Superfund law and other federal and state regulatory programs affecting employment and environmental matters.
We represented an airline in the appeal of an OSHA citation for alleged general duty clause violation for failure to require seatbelts on vehicles operating on an airport tarmac. Airlines throughout the industry opposed OSHA’s effort to require the use of seatbelts, which they viewed as causing more hazards than they prevented. On the eve of trial, the Department of Labor dismissed the citation with prejudice, without requiring any further action or penalty payment by the airline. We also represented the airline in parallel civil litigation filed by the family of the employee as a result of the incident.
We represented a snow removal company in an OSHA investigation into the death of an employee of a temporary employment agency assigned to the company’s service. OSHA investigated numerous possible violations, but issued citations for only two alleged violations, and proposed a penalty for only one of them. The citation was eventually settled without admission of liability by the company. The representation included handling numerous interviews of company management and employees, and responses to numerous requests for documents by the agency.
Our nursing home and hospital client received notice from OSHA that employees were being exposed to allegedly unhealthy levels of mold. We oversaw the investigation of the conditions, prepared the response to OSHA, and managed steps by our client to address the complaint. No citation issued.
Our manufacturing client received a notice from OSHA of workplace violence at one of its facilities. We oversaw investigation if the complaint, preparation of interview summaries of witnesses and a statement by management, and the response to OSHA’s inquiries about the complaint. No citation issued.
We represented our manufacturing client in 6 citations received from OSHA, including alleged violations of the hazard communication standard, inadequate training, and inadequate protective devices. On behalf of the client, we requested an informal conference with OSHA and negotiated settlement of the citations.