How much discretion does OSHA allow you?

by on February 23, 2012 · 0 Comment POSTED IN: Workplace Safety Network

Are OSHA regs written in stone? Or can you exercise your own judgment as long as you take adequate steps to keep workers safe?

As this case shows, it depends on the reg.

“Fine, we’ll install top rails on the sides of the scaffold,” said Supervisor Joe Green to the OSHA inspector. He immediately stopped work and directed his crew to begin the installations.

Green went on: “But are you really going to hit us with a citation? That cross-bracing is perfectly safe – there’s no way a worker could fall.”

Can’t substitute for both
“The OSHA regulations say that cross-bracing can only substitute for either a top rail or a mid-rail – not both,” said OSHA inspector Sara Jones. “Your cross-bracing substitutes for the mid-rail, but you’re missing a top rail.”

“Yes, but that scaffold is still safe,” said Joe. “The cross-bracing makes the scaffold stronger, and those masonry blocks on the sides protect workers from falls.”

“The scaffolding reg says the blocks must be secured and form a wall at least 48 inches high,” said Sara. “The blocks aren’t secure, and they’re less than three feet high.”

Good safety record
“I think you’re not giving us credit for thinking this through,” said Joe. “We haven’t had an accident in more than five years. We’ve been inspected several times and never been cited by OSHA. And these workers are safe.”

“I agree you work for a good company,” said Sara. “You’ve got one of the best training programs I’ve ever seen. But it’s not debatable. Those workers are 60 feet up and could die in a fall. The regs are the regs.”

The company challenged the citation, saying it had thought through its scaffolding construction and that its solution was safe. Did it win?

No, the company lost and had to pay a fine. The OSHA Review Commission noted that OSHA regulations:

  • Do not allow cross-bracing to substitute for both a mid-rail and a top rail. If the cross-bracing is 32 inches high, it can substitute for a mid-rail; if 48 inches high, it can substitute for the top rail.
  • Do not allow masonry blocks to be used for fall protection unless the pile is stable and at least 48 inches high; the pile was too low and was unsecured.

As a result, the OSHA judge said the company was “technically” in violation of the OSHA’s scaffolding standard, and upheld a serious citation. However, it wasn’t all bad news. The judge slashed the fine from $2,500 to $1,000, noting:

  • The company had an excellent safety history, with no lost work-time accidents for five and a half years and no previous OSHA violations.
  • The company had a “great” safety training program, doing everything OSHA requires.
  • The company immediately fixed the hazard.

All these showed good faith toward safety, the judge said.

Bottom line: Your safety efforts matter. If you have a good safety program and fix problems right away, the judges will give you credit. But you also need to know which safety regulations allow you judgment, and which ones – like the scaffolding rule – don’t.

Cite: Secretary of Labor v. The Samuels Group, Inc., No. 07-1836, OSHRC.

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