Closing a Loophole that Allows Employers to Avoid Fixing Health & Safety Hazards
When an OHS agency issue citations, it must include an abatement order that sets a reasonable date by which the employer must fix the cited problem. But because of a loophole in the OSH Act and in most state laws, agencies lack authority to force the employer to fix the problem immediately unless workers face an imminent danger, a shortcoming in the law that leaves workers exposed to dangerous conditions long after they have been identified. Experts often refer to this as the “abatement during appeals” problem.
An employer who receives a citation can avoid fixing the problem by simply filing an appeal of the citation or the proposed abatement date. The appeals process can last months or even years, and the longer it takes, the more likely it is that the unfixed problem will lead to injury or death. According to federal OSHA, there were 33 contested cases between 1999 and 2009 where a worker died at the same worksite while employers fought a citation.
Agencies that want the most serious hazards to be fixed right away are forced to bargain with employers, quickly settling for sharply reduced penalties in exchange for faster abatement. Yet OSHA’s enforcement data show that the “abatement during appeals” problem is growing—employers are challenging citations at an increasing rate. From 2005 to 2009, employers appealed 11 percent of state and federal safety citations, and over the next four years, that rate doubled to 22 percent. In 2011 alone, employers contested more than 33 percent of citations.
What’s the Solution?
In states where federal OSHA has jurisdiction for worker health and safety, closing the abatement during appeals loophole would require congressional action. Yet in states that oversee their own OHS programs under a state-plan approved by federal OSHA (state-plan states), the state can adopt legislation that requires employers to fix serious hazards by the deadline stated in the abatement order, whether or not they choose to appeal the underlying citation. Mandating a quick fix ensures immediate protection for workers and ensures employers cannot use their workers’ safety as a high-stakes bargaining chip to demand penalty reductions.
Appeals by the Oil Industry: Case In Point. Some industries are notorious for routinely filing appeals. From 2000 to 2010, oil refineries contested 53 percent of all safety violations, and the average contested case took 20 months to resolve. One striking example is the case against Tesoro Corporation following a comprehensive inspection of its Anacortes, Washington, oil refinery. In 2008, before Washington enacted a law that closed the loophole, the state OHS agency found 17 violations, many of which implicated poor management of “process safety” involving highly hazardous chemicals. When Tesoro challenged the citations, the agency ended up reducing the proposed penalty from $85,700 to $12,250 and withdrawing 14 of the cited violations to persuade the company to drop its appeal, fix the hazards, and submit to an independent audit.
Model Federal Legislation. In designing a bill to close this loophole, advocates should look at two pieces of federal legislation that are particularly well developed and offer the strongest protections for workers. The Protecting America’s Workers Act (PAWA) and the Robert C. Byrd Mine and Workplace Safety and Health Act are both bills that would have closed the loophole in the OSH Act, thereby ensuring quick fixes in every state.
Mine workers, whose health and safety is policed by the Mine Safety and Health Administration (MSHA) instead of federal OSHA, benefit from a statute that requires their employers to abate hazards by the time stated in the citation, regardless of any appeals. Under the Mine Safety and Health Act of 1977, employers who want to challenge the citation or deadline for fixing the hazard are entitled to an expedited hearing.
Urging State Legislative Action. Advocates seeking to pass legislation in their state should look at statutes in Oregon and Washington where legislatures have already closed the loophole. Likewise, advocates should look at proposals that were introduced in California in 2013 (vetoed by Governor) and in Tennessee in 2014.