Loren Kean Law

Loren Kean Law

Loren Kean Law

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PENALTIES FOR OSHA VIOLATIONS IN FLORIDA Bruce Loren, Kyle Ohlenschlaeger, Brandon Camilleri | May 26 2020

OSHA standards are rigorous and notoriously hard to follow. Many employers are unaware that violations can result in criminal charges. Due to an increase in work-related fatalities, state prosecutors are being pressured to pursue criminal sanctions against non-compliant employers. To adequately protect themselves, employers should be aware of what violations can trigger criminal penalties and what steps they can take to mitigate or avoid citations.

Falls continue to be the leading cause of construction related fatalities in Florida. In response, on October 1, 2019, OSHA implemented the “Regional Emphasis Program for Falls in Construction” (“REP”). The REP allows OSHA safety officers significant latitude in deciding when and where they conduct inspections as it pertains to fall violations. If ongoing work is being performed at heights without adequate protection, the scope of the inspection can be expanded to search for other types of violations.

What rules apply to Florida?

States may elect to use OSHA federal standards or create a state plan subject to OSHA approval. Florida follows the OSHA federal standards, available here.

Criminal Charges:

OSHA is permitted to bring criminal charges if an employer has been cited for any of the following:

  • (1) providing false statements on a required document (e.g. OSHA 300 log – a record of serious injuries and illnesses);
  • (2) giving advance notice of an OSHA inspection to employees; or
  • (3) willful violations that lead to the death of an employee.

A willful violation is one committed intentionally, with voluntary disregard for the law's requirements, or with plain indifference to worker safety and health.

Civil Penalties for Violations:

OSHA penalties are adjusted annually. Effective January 5, 2020, OSHA violations carry the following maximum penalties:

  • (1) non-serious - $13,494 per violation;
  • (2) failure to abate - $13,494 per day beyond abatement date; and
  • (3) willful or repeated violations - $134,937 per a violation.

OSHA also has the power to recommend charges to a district attorney. The district attorney can fine first-time offenders up to $10,000, imprison them for up to six months, and use misdemeanor or felony charges to obtain an injunction which prevents the offender from working.

How can employers protect themselves?

For fall protection inspections under the REP, if the officer is refused entry, they must get a warrant. Do not refuse entry as that will set the tone for the inspection; however, request a few minutes to call your attorney for professional advice.

Create written policies. There are few grounds to fight an OSHA violation if you cannot point to a specific written policy requiring compliance with OSHA standards (e.g., ladder and scaffolding requirements for fall protection).

Invest time into worksite monitoring. There should be someone in your office whose job is dedicated to ensuring compliance and they should understand the rules for each jurisdiction where you are working. It is always more cost efficient to spend money preventing violations and citations instead of fighting them later.

If you do receive a citation, hire an attorney to guide you through the citation process. It is important to retain an attorney early on. Your attorney can prevent you from making mistakes that will result in additional citations and request an informal conference (within 15 days of the citation). During the informal conference, your attorney can discuss decreasing and removing citations, as well as possibly avoiding OSHA’s submittal for criminal charges.

Bruce E. Loren, Kyle W. Ohlenschlaeger and Brandon J. Camilleri of the Loren & Kean Law Firm are based in Palm Beach Gardens and Fort Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law, employment law, and complex commercial litigation. Mr. Ohlenschlaeger focuses his practice on construction law and a wide range of commercial litigation disputes. Mr. Loren has achieved the title of “Certified in Construction Law” by the Florida Bar, exemplifying the Bar’s recognition of this expertise. The firm’s construction clients include owners/developers, general contractors, specialty contractors in every trade, suppliers and professional architects and engineers. Mr. Loren, Mr. Ohlenschlaeger and Mr. Camilleri can be reached at bloren@lorenkeanlaw.com, kohlenschlaeger@lorenkeanlaw.com, bcamilleri@lorenkeanlaw.com or 561-615-5701.