TEN (IN)FREQUENTLY ASKED QUESTIONS ABOUT WORKPLACE SAFETY

John M. Williams (williams@rwktlaw.com)

Typically, lawyers only get questions after legal problems arise. What do I do now? What are my rights? How can I defend this? The best questions often go unasked. This isn’t to suggest that the best question is the most complex. The best are those that, if answered, prevent rather than minimize legal issues. Below are ten questions every employer should ask. If they aren't frequently asked, they should be:

1. WHO IS IN CHARGE OF WORKPLACE SAFETY?If you are an employer, the answer is YOU. Formal training increases safety; however, the culture of your business creates a safe work place. A culture stressing safety and accountability should influence all your practices. Every employee is responsible, too, but the standard is set at the top.

2. WHO POLICES THE EMPLOYER?Under the Occupational Safety and Health Act of 1970, the United States Department of Labor—through the Occupational Safety and Health Administration (“OSHA”)--oversees workplace safety. States may develop their own safety programs which, if approved by OSHA, will shift this responsibility to the state. Currently, 26 states (including, the author’s home state of Kentucky) administer their own programs. Mining operations are governed by the Mine Safety and Health Act of 1977 through the federal Mine Safety and Health Administration. States may also have separate regulatory powers over mines.

3. IS MY BUSINESS COVERED BY OSHA?Almost certainly. There are limited exceptions, including immediate family members of farm workers, self-employed workers and workers covered by another federal safety act (e.g., mining operations are covered by the Mine Safety and Health Act of 1977).

4. I’VE NEVER SEEN A SAFETY INSPECTOR. IS MY BUSINESS IN THE CLEAR?No. Unless you are in a heavily regulated industry, you may rarely see an inspector. Do not allow this to lull you into inaction. First, safe work practices should take priority regardless of the law. Second, if a serious work place accident occurs, rest assured that your compliance (or lack thereof) with the law will be thoroughly examined. Third, and most importantly, workplace safety shouldn't be driven by the presence (or lack thereof) of inspectors.

5. HOW DO I KNOW IF I’M IN COMPLIANCE WITH THE LAW?Assuming you don’t find out from a government inspector, you should periodically audit your business to ensure compliance. Larger employers have safety personnel dedicated to compliance. For smaller businesses, outside auditors can be used to ensure compliance with current regulatory requirements.

6. HOW DO I TRAIN MY EMPLOYEES?There are many available training resources. Private training companies are readily available as well as OSHA assistance. OSHA has a program dedicated to assisting small business, in particular. Consider implementing an Injury and Illness Prevention Program in your workplace.

7. WHAT IS AN ILLNESS AND INJURY PREVENTION PROGRAM?

It is a voluntary, employer-implemented safety program set up under OSHA guidance. An IIPP is designed to manage workplace safety with a program tailored to the employer's business. In some states, such as California, an IIPP is required by law.

An IIPP is a detailed safety manual covering hazard communications, accident reporting and response, emergency actions, safety inspections, record-keeping and other safety requirements. Refer to OSHA or your state's safety program for details. All employees should be familiar with the IIPP. Periodic review and update is essential, too.

8. AREN’T THESE GOVERNMENT FINES JUST THE COST OF DOING BUSINESS?No. The goal should be no penalties. In industries like mining, inspections are so frequent and regulations so detailed that zero citations may be difficult to achieve. Regardless, best practices require a goal of no violations. A baseline of “some” violations may contribute to a culture where safety is lax. Moreover, civil penalties can be substantial, perhaps far beyond what one would consider a cost of doing business.

9. WHEN SHOULD I HIRE A LAWYER?We lawyers might be inclined to answer: “TODAY!” In truth, you likely do not need a lawyer for your day-to-day safety compliance. The vast majority of interaction with regulators will be non-adversarial. There is no need to filter everything through a lawyer. Nevertheless, there are times when a lawyer should be retained:

Large proposed penalties: What is considered “large” is relative to the size of the employer. While this is a bit of judgment call, always consult attorney if the penalty is such that it will cause serious financial strain.Serious violations: When faced with a serious safety violation, the employer should contact a lawyer early in the process. Remember: A proposed penalty is just that—proposed. You have the right to defend yourself.Litigation: In most administrative law courts, employers may represent themselves. Cost savings make this tempting. Actual litigation (depositions, court appearances, etc.) should be handled by an attorney.

10. SHOULD I JUST FIGHT EVERYTHING?No. This is known as the Scorched Earth Philosophy. This employer/philosopher has concluded that it will battle the "Government" on everything. This is never a good approach for (at least) three reasons:

First, the Government has more resources and time than you do. It can do battle with you as long as necessary, while you spend your work time and resources (attorneys’ fees and expenses) fighting losing causes.

Second, not everything is defensible. Many violations are valid. If you receive a well-founded safety violation, your resources are better spent correcting the violation and ensuring that it doesn’t happen again.

Third, it sends the wrong (or maybe the correct) message. Does the employer put more emphasis on fighting or on safety? If you contest everything, soon your credibility becomes an issue. The Government is made up on individuals, just like your business. Those people are human, too, and make judgments. If an employer gets a reputation of being an obstructionist, nothing will go smoothly.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

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