Cardinal Sin—Construction Contractor’s Alleged Failure to Abate OSHA Citations Results in Big Penalties

By: Mark A. Lies, II and Adam R. Young

Synopsis: By ignoring the terms of a settlement agreement it had with the Occupational Safety and Health Administration (OSHA), a New Jersey roofing contractor now faces more than $600,000 in penalties after numerous citations for allegedly failing to abate 2020 OSHA citations.

Employers often receive OSHA citations. Any citation the employer receives must be “abated,” meaning that the violation must be corrected to comply with the law, within 20 days of a settlement, unless a longer abatement term is prescribed by the settlement agreement. OSHA regularly conducts follow-up inspections to ensure abatement. Failure to abate can be fined with huge penalties — $13,653 per violation, per day beyond the abatement date. For example, just 60 days after the abatement date, four citations could result in a fine of more than $3,000,000.

OSHA’s Hasbrouck Heights, New Jersey Area Office recently penalized a construction employer following a series of inspections at multiple worksites. In December 2020, OSHA allegedly observed the contractor’s employees working on a residential roof project without required fall protection, the most commonly cited occupational safety issue. In January 2021, OSHA visited another work site where “inspectors identified unsafe use of ladders and failures to ensure that workers used head, eye and fall protection.” These two inspections resulted in two willful, four repeat and three serious citations and $420,521 in penalties. According to OSHA, the “contractor … agreed to make safety improvements after federal safety inspections in 2019 identified nine violations with proposed penalties of $121,687.” The employer then “violated its settlement agreement with the U.S. Department of Labor. Following inspections in 2020 and 2021, the company now faces $600,741 in penalties for 10 more violations.” The new citations include a $180,220 citation for failure to abate one Serious violation.

The huge citation was coupled with a public relations disaster when OSHA released a damaging press release: OSHA Area Director Lisa Levy excoriated the contractor’s alleged “failure to honor its agreement with OSHA and knowingly put workers at risk of serious injuries or worse is inexcusable.”

Any allegedly non-compliant conditions that OSHA raises during an inspection should be promptly abated during the inspection (if possible) to reduce the probability of citations and to secure a Quick Fix penalty deduction. If OSHA issues citations, employers would be wise to carefully consider what citations they accept, and how those citations can be abated. Abatements can be explicitly detailed in settlement agreements, to ensure that all parties have the same views of abatement. Citations must be abated within 20 days of the settlement agreement becoming a final order, and additional “enhanced” abatements — that do not correspond to specific citations — should also be addressed promptly. If OSHA raises concerns about abatements that were submitted, employers should be responsive and prompt to get any issues addressed.

Under OSHA’s Violation-By-Violation penalty policy, a failure to abate identified in a subsequent follow-up inspection could also result in an “egregious” type of citation where OSHA decides to separately cite each piece of equipment that is non-compliant, each employee who may be non-compliant (for example, failure to wear PPE) or each policy that may be non-compliant instead of “grouping” similar instances of violations. In these circumstances, the employer will also be identified as a Severe Violator and become subject to OSHA’s Severe Violator Enforcement Program.

Employers should consult with outside counsel on how to structure settlement agreements and avoid large Failure to Abate citations like the one received here.

Mark A. Lies, II, is a partner with the law firm of Seyfarth Shaw LLP. He can be reached at (312) 460-5877 or mlies@seyfarth.com. He specializes in occupational safety and health and related employment law and civil litigation.

Adam R. Young is a partner with the law firm of Seyfarth Shaw LLP. He can be reached at (312) 460-5538 or ayoung@seyfarth.com. His practice focuses on occupational safety and health matters, employment and commercial litigation.