Dive Brief:

• The U.S. Court of Appeals for the 11th Circuit Court upheld OSHA's decision to issue a willful citation in the case of a worker's deadly fall, even though the employer claims the foreman in charge was ignorant of safety requirements that could have prevented the incident, according to a summary written by the law firm of Saul Ewing Arnstein & Lehr LLP for JD Supra.
• A Georgia mechanical contractor's employees were working near unprotected skylight openings when one worker fell 15 feet through an opening, a fall that resulted in his death. OSHA investigated the accident and determined that the contractor exhibited reckless disregard for fall protection; it issued the company a willful violation citation and proposed a $49,000 fine. The company contested the decision, claiming that its "flawed" training program left the foreman unprepared, which precluded a willful violation, but the court rejected that argument.
• As part of its decision, according to Safety.BLR.com, the court said that the foreman showed such disregard for employee safety that even if he did know the proper safety procedures, it is likely he would not have followed them. In addition, the court found that the fact that the foreman told employees to be careful working around the rough skylight openings indicated he knew how dangerous working in that area was.

Dive Insight:

Construction firms regularly contest the size of an OSHA fine or the violation itself. After the agency issues a citation, employers typically have 15 working days to contest in writing the citation, proposed penalty or abatement date, the deadline for fixing the safety deficiency.

Another option an employer has is to request an informal conference with the appropriate OSHA area director, who can better explain the requirements of the citation or even negotiate and authorize an informal settlement agreement. After 15 days, the area director has limited authority to adjust any component of the citation.  

If an employer submits a Notice of Intent to Contest document, the case automatically enters the litigation process, very similar to any other court case.

And as with any trial, there is witness testimony and the introduction of facts that could worsen a negligent contractor's legal position. For example, according to Industrial Safety & Hygiene News, a New York-based maintenance contractor contested OSHA citations in 2016 after more than one employee fall on its job sites, resulting in one fatality. After hearing testimony from witnesses about the state of the firm's safety practices, the judge added $56,000 to the original fine of $35,000.