Article

Hiring an OSHA defense attorney: The best defense is a good offense

10.09.2020

Some companies first hire an OSHA defense lawyer after they have received a citation. While attorneys with deep expertise in OSHA matters can and do provide valuable guidance at this critical juncture, the best-case scenario is to avoid getting in that predicament in the first place. Citations are costly, both to a company’s bottom line – fines can exceed $130,000 for a willful or repeat violation – and to its reputation. An OSHA lawyer can provide counsel on a wide range of matters, from setting up safe and healthy workplaces that comply with OSHA standards to protecting the employer’s interests during an OSHA inspection, to help prevent a citation.

OSHA compliance is complex

The web of OSHA laws and regulations is complex and ever-changing. In addition to federal regulations, about half the states have their own occupational and safety requirements for certain categories of employers. The mission of OSHA is to protect workers’ health and safety, and employers must comply with all applicable OSHA standards, which vary by industry. In addition to setting up safe workplaces and practices, all employers must immediately report workplace deaths or serious injuries to OSHA, and companies with more than 10 employees in certain high-risk industries must keep detailed records of all but the most minor injuries and illnesses throughout the year. OSHA enforces its standards by performing inspections. In FY 2019, the federal agency performed 33, 393 inspections, about 55 percent of which were in response to injuries, fatalities, or complaints about safety violations from employees or others. The remaining inspections were programmed and focused primarily on industries where known hazards exist, such as construction, manufacturing, farming, maritime, utilities, and some categories within the health care, transportation and recreational sectors. Since the outbreak of COVID-19, OSHA announced its priorities for 2020 would include eliminating coronavirus-related hazards, and that hospitals and other health care providers in geographic areas with high transmission rates or employers with high numbers of COVID-related sicknesses would be prioritized for inspections.

How OSHA attorneys can help

Attorneys with specialized expertise in OSHA can counsel employers on reporting requirements while helping employers develop and update workplace safety policies and programs based on the latest standards for their industry. Attorneys can train the company’s designated safety officers on how to enforce safety standards and how to prepare for a potential inspection, and they can be at the safety officer’s side throughout the OSHA inspection process. They can also prepare emergency response action plans for employers, train managers, and staff members on the OSHA standards that apply to them, and develop and review employee safety manuals.

Besides setting up safe practices, an OSHA defense lawyer can advise employers on how to respond to a catastrophe, such as a serious workplace injury. Having an attorney with OSHA expertise by your side during such a critical time can help prevent any missteps that could magnify the problem. The attorney can provide rapid response, appearing on your site to assist you with your investigation and your dealings with OSHA, providing guidance on reporting the incident, responding to OSHA subpoenas and document requests, presenting employee witnesses for OSHA interviews, and generally making sure you assert your rights throughout the investigation.

Responding to an OSHA citation

OSHA cites companies for a wide variety of violations. If you receive a citation, an attorney with expertise in OSHA matters can work to get your monetary penalty reduced or even get the citation vacated in some cases. Attorneys can also negotiate a modification of the citation so that it is reclassified into a less serious category, such as getting a “Willful” classification reduced to “Serious,” or a “Serious” reduced to “Other-than-Serious.” In addition to requesting an informal settlement conference to mediate the penalty, attorneys can contest an OSHA citation through litigation.   

If you need assistance with an OSHA matter, give us a call. Few law firms in the United States can match the depth of Sheehy, Ware & Pappas’ OSHA practice. We have assisted hundreds of employers in matters ranging from compliance to investigations to settlement mediation and litigation.