Documented efforts to proactively audit and/or observe employees to confirm compliance with employer safety programs, policies, and procedures is, in our opinion, one of the most important aspects of a workplace safety and health program.  Not only do such efforts help prevent accidents and reinforce good behavior, but having documented records reflecting regular observations of safe work practices may enable an employer to negate OSHA’s prima facie case by preventing the agency from showing the employer had knowledge of the alleged violation.  Documented internal auditing/observations are also often the key to successfully asserting the employee misconduct defense in response to an OSHA citation.  I frequently emphasize this when speaking or writing about challenging standards like lockout/tagout (LOTO), personal protective equipment (PPE), and powered industrial trucks (PIT), as I all too often see employers expecting to get a citation vacated because they have an instance or two of some form of safety related discipline found by happenstance or because an accident occurred, not resulting from proactive, intentional audits.

A recent Occupational Safety and Health Review Commission (OSHRC) decision in which an Administrative Law Judge (ALJ) vacated a PIT citation illustrates the value of proactive audits and observations.  See Americold Logistics, LLC, No. 22-1400 (OSHRC Aug. 22, 2023).  In the case, OSHA, seeking to affirm a citation alleging that the employer allowed an untrained employee to operate a powered industrial vehicle (PIV) in violation of 29 CFR 1910.178(l)(1)(ii), argued that, while the company may not have had actual knowledge of the violation, it nevertheless had constructive knowledge.  Constructive knowledge is shown where OSHA establishes that the employer could have known of the cited condition with the exercise of reasonable diligence.  Whether an employer was reasonably diligent involves a consideration of several factors, including the employer’s obligation to have adequate work rules and training programs, to adequately supervise employees, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence of violations.  Reasonable diligence, the ALJ explained, implies effort, attention, and action; not mere reliance upon the action of another.  As such, OSHRC has held that “[r]easonable steps to monitor compliance with safety requirements are part of an effective safety program.”

In Americold, the ALJ noted that the company, in addition to training and certifying its PIV operators, “took reasonable steps to monitor compliance with safety requirements.”  This included two forms of routine, documented monitoring of employee safety and performance – first, floor supervisors had to conduct three “behavior-based safety observations” per day followed by coaching, both of which were documented; and second, Americold required floor supervisors to conduct “coaching method observations” twice per day.  Americold was also able to demonstrate that, when safety violations were observed, employees were disciplined, including three employees terminated in the six months preceding the accident for rule violations related to PIV operation.  As a result, the ALJ held that OSHA failed to establish that Americold did not exercise reasonable diligence to ensure only trained individuals operate PIVs at its facility.

Employers looking to improve safety and obtain better outcomes when contesting citations would be well-advised to follow Americold’s example.  If you want to talk through what this would look like at your company, give one of the OSHA-focused attorneys at Conn Maciel a call.

On Thursday, June 8, 2023, Aaron Gelb, Mark Ishu, Dan Deacon and Ashley Mitchell presented a webinar regarding Uh Oh, OSHA’s Here: How to Prepare For and Manage OSHA Inspections.

Over the past year, the number of OSHA inspections has soared, especially since the COVID-19 pandemic eased, and the National Emergency has now come to an end. We are seeing, as part of OSHA’s focused effort to use (and sharpen) all the tools in its toolbox, more inspections, higher penalties, record numbers of $100K+ citation packages, and a continuing rise in willful and repeat citations and worker safety criminal prosecutions. OSHA continues, also, to look for new and creative ways to proactively inspect employers with targeted enforcement initiatives and emphasis programs, while also significantly expanding punitive measures such as the Severe Violator Enforcement Program (or SVEP), and the new Instance-by-Instance citation policy), creating a number of minefields for even the most conscientious employers. In short, the consequences for employers being caught ill-prepared for an OSHA inspection, and making bad choices during an inspection, are more dire now than ever.

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