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June 14, 2018
Court warns ‘serial violator’ of incarceration

Enforcement actions OSHA took against a New England roofing company in 2011 and 2015 appear to have had no impact on the company’s willingness to improve safety conditions for its employees and pay approximately $400,000 in penalties for alleged violations of OSHA’s regulations. As a result, the U.S. Court of Appeals for the 1st Circuit has intervened for a second time by ordering the company to undertake multiple actions, including developing written comprehensive safety and training programs. The court added that should the company fail to comply with the order, it will consider additional coercive actions up to and including incarceration of the business owners “and any other individual who, with notice and knowledge of our judgments or this order, may be found responsible for noncompliance.”

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Willful violations at 11 jobsites

The company and its predecessor were cited by OSHA for egregious, willful, repeated, and serious safety violations at 11 different worksites in Maine between 2000 and 2011. According to a 2015 OSHA news release, the company’s owner is a “serial violator” of OSHA’s requirements to provide employees with fall protection equipment and training. Falls are the leading cause of death in construction work.

When the company did not respond to OSHA’s citations, OSHA issued orders, which also elicited no response. In 2011, OSHA requested and obtained a decree from the 1st Circuit, which ordered the company to correct the cited violations, implement appropriate safety measures, and pay accumulated fines and interest. OSHA states that the company did none of this, and accordingly, the court held the company in contempt.

Company must accept responsibility

The latest consequence for the employer is a new court order, issued May 16, 2018 comprising the following elements:

  • Comprehensive safety and health program. Lessard has 60 days to contact the Maine Department of Labor’s Safety Works! Program or an equivalent provider and arrange for a comprehensive review of the company’s operation. The written program to be developed must include a system for performing a worksite analysis of every jobsite as well as a system for investigating all accidents and reported near misses. Also required is a comprehensive training program to ensure that all employees understand all hazards to which they may be exposed; all employees know the means to prevent harm to themselves and others from exposure to hazards; and all managers carry out their safety and health responsibilities effectively.
  • Accept responsibility. The company must recognize and accept its responsibility to provide frequent and regular safety inspections of each jobsite; ensure that all employees, independent contractors, or subcontractors are required to use all appropriate safety equipment; and ensure that all workers who violate OSHA standards are removed from the hazard and informed of the steps needed to correct the violation.
  • Equipment. The company must take steps to ensure that all required safety equipment is in the company’s possession and, within 30 days of the order, provide the local OSHA office with a complete list of the equipment on hand.
  • Job hazard analysis. For each jobsite with employees, the company must have a competent person perform a hazard analysis to identify the tasks that will be performed during the job, determine the hazards associated with those tasks, and ensure that all safety equipment necessary to perform such tasks safely are present and utilized on the jobsite.
  • Cooperate with OSHA. For a period of 1 year, the company must notify OSHA in advance and in writing about every jobsite. OSHA may enter any of these sites without a warrant and inspect all compliance documents.

The company must also provide the court with extensive financial records documentation regarding its ability to pay penalties in the amount of $389,685.

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