Groups file lawsuit against per-employee citation policy

October 5, 2009 by Fred Hosier

Posted in: Compliance, In this week's e-newsletter, Latest News & Views, Lawsuits, OSHA news, PPE (protective equipment), What do you think?, Who Got Fined and Why?

Several business groups, including the National Association of Manufacturers, have filed a lawsuit challenging OSHA’s per-employee penalty policy for safety gear violations.

The rule has been in effect since Jan. 12, 2009, and OSHA has already used it.

OSHA has said it intends to use these new measures only in egregious cases in which employers showed a clear disregard for issuing PPE to employees. However, the standard doesn’t spell out that it’s only for use in severe cases.

The National Association of Manufacturers points out that a $7,000 fine for lack of or incorrect PPE could turn into a $700,000 penalty if 100 employees within a facility are required to wear that type of PPE.

Arguments in the case are expected to begin in November.

Do you think OSHA should be able to fine companies, per employee, for PPE violations? If so, under what circumstances? Let us know in the Comments Box below.

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Tags: lawsuit, National Association of Manufacturers, per-employee violation, PPE, safety gear

Diane N

I like Jason B’s comment about OSHA fining the employee. If an employer is making protective equipment available and training employees how to use it, fining the employee is a great motivation to the employee to follow the company’s PPE guidelines. We have some employees who are written up regularly for not wearing the correct equipment. I am not in on the firing of employees so do not know if any of them have been terminated for not following company policy. I know I would be much more likely to remember my ear plugs when I go talk to someone on the floor if I knew it could cost me financially (as it is I usually have to walk back to the office to get them).
http://rinconsafety.com Jon Fast

I would really like OSHA to take the stance the MSHA takes and that would be fine the employee and the employee’s supervisor if the employer can document that the employee was trained and given the proper PPE to use at his task. So many times the employer gives the employee the proper PPE and the employee makes the decision not to use it. Supervisors must supervise and this includes making employees do things that they do not want to do and this includes wearing the proper PPE.
Ralph Blessing

WOW!!

First of all I agree with John. All monies acquired from fines should be utilized to further develop the efforts in this country to make safety a true reality. It should be utilized to hire more compliance officers and research. OSHA could hire their own team of researchists and conduct studies where necessary. There is too much being given away to organizations who really are not doing anything new to aid in the fight for a safe and healthy work environment. How many more studies do we need on fall protection and other such issues? What about studies on the true effects of silica dust, manganese, and other welding fume sicknesses or the effects of gluten intolerance or celiac disease on the workforce? Not enough funds for these issues and we wait on centers of higher learning to get funding to provide information here.

Why fine employees? If an employer has an issue with an employee not wearing PPE they should be fired! I am sure if an employee is not wearing PPE when OSHA walks the job that is not the first time. It is a behavior issue and you correct it immediately. Follow the rules or the yellow brick road!!
me

Why always penalize a company? Why did OSHA get rid of voluntary compliance? So they could levy fees to pay for themselves? What’s the goal? Safety or make money? Let’s see: hire 160 new investigators, double fines, go after under reporting so they can levy more fines…Seems like prevention and attempting to do the right thing is just not good enough. Here’s something, some employees would love to be written up and go through progressive discipline to be fired so they can collect unemployment and be rewarded. It’s a society issue, too. thank you for letting me rant.
Robert

Jason B,

The first thing OSHA does when they come for an inspection is look at the company’s records. They also look through the employees’ files. The look to see if anyone has been written up for any safety violations. They look to see what training has been held within the company.

They also look at what the company’s safety policies are and if the company is exercising due diligence in enforcing the safety policy.

When they look through the records and see no write ups, then walk out into the shop and see everyone wearing safety eye wear and one or two people not, they are going to assume that the supervisor ran around and told people to put on their eye wear because OSHA is there and those one or two aren’t wearing them out of habit of not wearing any.

If they see the records all check out good then walk out into the shop and see one or two not wearing their proper protection, they probably won’t do anything because they already know those two will be seen and administrative action will be taken.

When they look at the records and see no write ups then walk out into the shop and there is a forklift and there’s scratches in the paint or skid marks on the ground, they are going to know the management at the company is full of it when they tell the inspectors that they don’t have any accidents worth mentioning and will inspect harder and be harsher.
A.E. Simmons

Whether it is 1 employee or 100, a flat fee for the infraction should be levied….
$5000.00(first offense) would be enough stimulus for companies disregarding the importance of protective gear.

Second offense: $10,000.00

Third offense: Mandatory shut down until protective equipment is obtained, indoctrinated and used.
Jason B

No. I think OSHA would be better suited fining the workers who refuse to wear required PPE. Canada has started doing this. Employers who make it available and train on it’s use and limitations, should not be penalized if during an inspection, someone from OSHA sees an employee not wearing the PPE he/she should have been wearing.
John

I’m glad pro-business groups are starting to sue OSHA, and not just groups like the ACLU and Public Citizen. The fines OSHA receives goes into a general fund, which ultimately goes into Special Interest groups’ hands to help Congresspersons get re-elected time after time. They should be able to fine companies, per employee, but they are currently too irresponsible with taxpayer money.