OSHA inspected a yogurt manufacturing plant last fall and in March 2012 issued citations for safety and health violations with proposed penalties totaling $178,000. OSHA inspected a cheese manufacturing plant beginning last fall and in May 2012 issued citations for alleged violations of the process safety management and other standards, with penalties totaling $241,000. Citations resulting from both inspections include those most frequently cited in OSHA enforcement against the “Food and Kindred Products” industries, including hazard communication; guarding of machines as well as stairs, platforms and floor openings; emergency egress; confined space entry; forklift operation; control of hazardous energy (lockout/tagout); and hearing protection.
These aggressive enforcement actions are reminders of the many specific regulatory requirements confronting the food and beverage industry. Although these two food manufacturers have initiated administrative litigation to defend the citations, they will likely have to correct some or all of the cited conditions and pay penalties.
The Occupational Safety and Health Act of 1970 (the OSH Act or the Act) authorized the Secretary of Labor to develop and enforce regulations, which the Act calls standards. Other than to increase penalties, Congress has not significantly amended the 40-year-old statute. Although the Act requires employees to “comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to the Act which are applicable to [their] own actions and conduct,” it fails to provide any regulatory means of enforcement against employees.
In contrast, employers are heavily regulated and may be seriously sanctioned for violations of standards. Employers have two duties. First, they must comply with occupational safety and health standards promulgated by OSHA. Second, employers must comply with the so-called General Duty Clause, which requires them to “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.”
The enforcement process begins with an inspection by compliance safety and health officers employed by OSHA. Inspections may be triggered in one of two ways: by an incident or complaint or by OSHA’s “programmed inspection” process. It appears that the OSHA inspection of the yogurt plant resulted from a complaint, but that the cheese plant was the subject of a planned inspection, presumably under the National Emphasis Program OSHA launched in November 2011 that targets facilities subject to the process safety management standard. The presence of refrigeration systems using anhydrous ammonia triggers the PSM standard at many food and beverage manufacturing facilities. In either case an inspection is a government search under the Fourth Amendment, which means OSHA may enter a food manufacturing facility or any other workplace only with the consent of the owner or with a warrant, which should be issued only after a finding of probable cause.
OSHA inspections are generally unannounced. Giving advance notice of an inspection is punishable as a misdemeanor. Inspectors must present their credentials on arrival. They then hold an “opening conference” during which they will explain the purpose and scope of the inspection. They typically ask at the opening conference to see a number of documents OSHA requires employers to maintain and make available on request, including the illness and injury log and the written programs that each employer must have in place, including the hazard communication program. The opening conference is followed by a site walk around. The inspector makes observations and takes notes, photographs or video. He or she may take samples or make other measurements. And the inspector will interview workers without management present, a practice expressly authorized by the statute. These activities must be “reasonable”; they should not unreasonably disrupt operations. Following the walk around the inspector holds a “closing conference.” At that time the employer should hear what conditions observed by the inspector constitute “apparent violations” of OSHA standards or the General Duty Clause. The inspection may last a few hours or continue for weeks.
Any violations found are converted into a Citation and Notification of Penalty that, on approval of the area director, will be issued and sent to the employer. The citation lists each condition observed that constitutes an alleged violation and the specific OSHA standard, section, paragraph and subparagraph allegedly violated. It also classifies each item as willful, repeat, serious or other than serious. The maximum penalty for willful and repeat violations is $70,000 and for serious and other violations $7,000. Repeat violations are those that have occurred within a five-year period prior to the date of the inspection. The OSHA citation against the cheese manufacturer included four repeat violations of the PSM standard at $38,500 each.
Receipt of an OSHA citation triggers a 15-business-day period during which the cited employer must act to avoid the citation, including the findings of violations, penalties and abatement, becoming an unreviewable final agency order. First, the employer may challenge the citation by filing a notice of contest. Second, the employer may request an informal conference with the area director. The informal conference must be requested and held quickly. It does not stay the time for the notice of contest.
Both the food manufacturers discussed here contested the citations. The contests triggered administrative litigation before an administrative law judge employed not by OSHA but by the Occupational Safety and Health Review Commission. Cases going through trial result in an ALJ decision with formal findings of fact and conclusions of law. Either side may appeal that decision to the full Occupational Safety and Health Review Commission. Only after the commission issues its decision may judicial review be obtained in a United States court of appeals.
Your company should be prepared for aggressive OSHA inspections and enforcement sanctions. A safety and health audit may reduce the likelihood and severity of citations your facility may face if inspected. Developing a protocol to manage inspections is also highly advisable. If your company is inspected or cited, experienced advocates like those on the McGuireWoods
Food & Beverage team are available to help you manage the inspection, defend the citations and negotiate penalties and the terms and conditions of abatement, all while focusing on minimizing risk and maximizing cost-efficient production.