OSHA treats all facilities of the same company as a single entity for enforcement purposes. That means if one facility gets cited and another facility owned by the company gets cited for the same or similar violation, it’s considered a “repeat violation”—even if the facilities are in different states thousands of miles apart! Here’s how to keep from getting hammered for repeat OSHA violations committed at different sites.
Click here for a Model Briefing you can use to educate your facility administrators and coordinate their compliance efforts.
What the Law Says
The OSHA Field Inspection Reference Manual, that is, the guidelines OSHA gives to its inspectors and enforcement agents, sets out different kinds of violations. A repeat violation basically occurs when OSHA cites an employer for the same or “substantially similar” hazardous condition within 3 years.
Many repeat violations are authored by employers who don’t care about safety and fail to abate hazards. Example: OSHA cites a factory owner for inadequately training workers who handle hazardous materials. The owner brushes it off and makes no changes. A year later, OSHA does a follow-up inspection and discovers the problem hasn’t been abated. The owner could be cited for a repeat violation.
But it’s not always the bad guys that get hit. Well-intentioned employers who make earnest efforts to maintain a safe workplace can also get cited for repeat violations. Things can get especially tricky when a company has more than one facility. That’s because substantially similar violations at separate facilities count as repeat violations against the company as long as the two facilities are under the jurisdiction (i.e., legal authority) of the same OSHA Area Office (or in the same state if the facilities are in one of the 21 states that have their own state OSHA plan).
Compliance Pointer: As a practical matter, OSHA doesn’t always follow territorial limits when issuing repeat violations. OSHA checks its national database to see if a company has other facilities outside the area and whether they’ve been previously cited for the same or similar violation, attorneys say. If so, OSHA might cite the employer for a repeat violation.
EEP Raises the Stakes
Avoiding repeat violations has become especially important because of OSHA’s Enhanced Enforcement Program (EEP) which targets companies with dubious safety records for extra scrutiny and tougher penalties. Being cited for repeat violations is one of the ways a company can land on the EEP hit list.
More precisely, OSHA puts companies with “high gravity” violations on a “targeted employer” list. Repeat violations are considered high gravity. Moreover, if any one facility has a repeat violation, all the other facilities owned by the company end up on the list. This is true even if those other facilities have perfect safety records.
3 Steps to Avoid Repeat Violations
To avoid repeat violations, companies must establish and implement a process for coordinating OSHA compliance efforts across the facilities they own and operate. There needs to be a system to ensure that when one facility gets cited the administrators of all the other facilities know about it. Administrators can then assess if the same hazard exists at their own facility and, if so, take steps to address it.
Experts suggest using a combination of three methods to coordinate compliance efforts across facilities:
1. Share OSHA Inspection Data.
Have each facility administrator forward a copy of any OSHA inspection files and correspondence to corporate HQ or another central location for distribution to all other facilities. The files should contain inspection notes, photos, corrective actions and other materials.
2. Create a Coordinating Committee
Designate a representative from each facility to serve on a joint compliance committee. The committee should meet regularly to report on their respective compliance initiatives and inspection results so administrators knows what’s going on at all the other facilities.
3. Distribute Reports
Corporate HQ should create and distribute a monthly report highlighting and summarizing compliance activities at each facility. The report would also summarize the results of any recent inspections or enforcement actions by OSHA.
Brief Facility Administrators
To coordinate OSHA compliance among multiple facilities you must educate facility administrators. You need to explain what you want and expect them to do and why. Like our Model Briefing, your briefing should:
An OSHA citation is never a good thing. But being cited for a repeat violation is especially serious. In addition to penalties, repeat violations can land you on OSHA’s EEP hit list and embarrass your company. Just make sure that if your company has more than one facility, you recognize your vulnerability and take steps to address it.