Source: Bloswick, Donald S. Ergonomic Analysis of the Workplace Course Notes. Managed Health Resource Inc. and Industrial Ergonomics Inc., 1994, 14-18.
Classifications of Citations
There are several levels of OSHA citations from de minimis, which carries no monetary fine, to egregious which can carry staggering penalties. But since ergonomic hazards are cited under the General Duty Clause which states that "each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees", ergonomic disorders are cited with at least a "serious citation.
For purposes of citations, serious physical harm is defined as impairment of the body in which part of the body is made functionally useless or is substantially reduced in efficiency on or off the job. Grounds for a serious citation might exist, for example, where an employee must exert high repetitive hand forces throughout the shift and, as a result, suffers carpal tunnel syndrome. The employer should have been aware of this condition and made some effort to modify the job to minimize the ergonomic stressors. A citation for a serious hazard carries a maximum penalty of $7,000 per citation.
In some cases a "willful" citation might be issued with a maximum citation amount of $70,000 per violation. A willful violation exists when evidence indicates that the employer committed an intentional and knowing violation of the OSHA Act. An example of a willful violation would be if an employer had previously contracted for an ergonomic consultant who had performed an ergonomic survey detailing the hazards and engineering controls required to minimize the ergonomic hazards. If the employer failed to act on these recommendations, therefore allowing employees to continue to be injured, the employer could be cited for a willful violation.
In order to provide an incentive to correct specific hazards, not just the cited employer, but for all employers with similar hazards, OSHA has adopted the concept of "egregious" or instance-by-instance penalties. A violation is deemed egregious if it is "...flagrant, displaying contempt for, negligence toward, or plain indifference to the health and safety of employees and/or the laws intended to protect employees and their rights." In these cases, penalties of up to $70,000 per instance can be imposed. An example of this would be where an employer has 30 individual work stations in a work area, each of which has ergonomic stressors which meet the above criteria. Instead of assessing one $50,000 penalty for the violation of the General Duty Clause of the OSHA Act, the 30 instances may each be assessed a $50,000 penalty bringing the total penalty to $1,500,000.
Two brief case studies will be used to illustrate major issues discussed above.
Upper extremity cumulative trauma disorders and the General Duty Clause
In 1990, the author spent considerable time assisting OSHA with the inspection of a facility involving hazards associated with upper extremity cumulative trauma disorders. Ergonomic hazards had been observed by the compliance officer and the ergonomic disorder incidence rate was relatively high. In response to interrogatories by the respondent, it was necessary to document the following:
In this case, the primary focus was on the documentation of the existence of the hazard.
Manual material handling hazards and the General Duty Clause
In 1990, the author also spent considerable time assisting OSHA with the inspection of a facility involving ergonomic hazards associated with manual material handling. In this case, the musculoskeletal injury rate was approximately 50 injuries per 100 workers per year. In response to interrogatories by the respondent and requests by OSHA, it was necessary to document the following:
In this case, the existence of the hazard was not a significant issue. Primary focus was on the documentation of economically and technically feasible and potentially useful abatement methodology.
Appeals by Employers
When issued a citation or notice of a proposed penalty, an employer may request an informal meeting with OSHA'S area director to discuss the case. Employee representatives may be invited to attend the meeting. The area director is authorized to enter into settlement agreements that revise citations and penalties to avoid prolonged legal disputes.
Petition for Modification of Abatement (PMA)
Upon receiving a citation, the employer must correct the cited hazard by the prescribed date unless he or she contests the citation or abatement date. Factors beyond the employer's reasonable control may prevent the completion of corrections by that date. In such a situation, the employer who has made a good faith effort to comply may file a PMA for an extended date.
The written petition should specify all steps taken to achieve compliance, the additional time needed to achieve complete compliance, the reasons such as additional time is needed, all temporary steps being taken to safeguard employees against the cited hazard during the intervening period, that a copy of the PMA was posted in a conspicuous place at or near each place where a violation occurred, and that the employee representative (if there is one) received a copy of the petition.
Notice of Contest
If the employer decides to contest either the citation, the time set for abatement, or the proposed penalty, he or she has 15 working days from the time the citation and proposed penalty are received in which to notify the OSHA area director in writing. An orally expressed disagreement will not suffice. This written notification is called a "Notice of Contest".
There is no specific format for the Notice of Contest: however, it must clearly identify the employer's basis for filing the citation, notice of proposed penalty, abatement period, or notification of failure to correct violations.
If the written Notice of Contest has been filed within the require 15 working days, the OSHA area director forwards the case to the Occupational Safety and Health Review Commission (OSHRC). The Commission is an independent agency not associated with OSHA or the Department of Labor. The Commission assigns the case to an administrative law judge.
The judge may disallow the contest if it is found to be legally invalid, or a hearing may be scheduled for a public place near the employer's workplace. The employer and the employees have the right to participate in the hearing; the OSHRC does not require that they be represented by attorneys.
Once the administrative law judge has ruled, any party to the case may request a further review by OSHRC. Any of the three OSHRC commissioners also may, at his or her motion, bring a case before the Commission for review. Commission rulings may be appealed to the appropriate U.S. Court of Appeals.
Appeals in State Plan States
States with their own occupational safety and health programs have a state system for review and appeal of citations, penalties, and abatement periods. The procedures are generally similar to federal OSHA's, but cases are heard by a state review board or equivalent authority.