Most businesses, particularly outside of construction or manufacturing, have probably not been the subject of an OSHA audit or may not have had much involvement with OSHA issues. This is due in large part to the small size of the agency. According to OSHA, with its state partners, there are approximately 2,100 inspectors responsible for the health and safety of more than 130 million workers. Add to the fact that there is no private right of action under OSHA, like the FLSA, and it is understandable why this may be the case.
However, there are other ways OSHA may become an issue for businesses. For example, if your business provides services at another entities worksite, the service contracts often contain provisions that the service provider shall comply with any and all applicable laws and they often reference OSHA specifically. Thus, failing to comply with OSHA standards could provide a basis for a party to terminate a contract even if the “real” reason for terminating the contract may be driven by something entirely different.
Another potential issue stemming from contractual obligations relates to negligence lawsuits. Although a state law issue, some states provide that a general contractor does not owe a duty of care to a subcontractor’s employees which is necessary to maintain a negligence claim. However, a recent case decided by the Indiana Supreme Court held that a contract created a duty of care for the general contractor to keep a worksite safe even for its subcontractors. In so holding, the court permitted the injured employee’s claim to proceed against the general contractor. Ryan v. TCI Architects Eng’rs Contractors, Inc., Ind., No. 49S02-1704-CT-253 (4/26/17).
In addition, poor safety records may be used by unions during election campaigns.
During difficult union negotiations, one cannot help but wonder why safety complaints to OSHA or state agencies sometimes see an uptick?
OSHA violations may sometimes be used in lawsuits (depending on the jurisdiction) by injured employees to escape the workers’ compensation system.
Labor law violations including OSHA may sometimes need to be reported in various situations including but not limited to bidding on certain contracts.
Ultimately, of course, the best reason for businesses to take OSHA seriously regardless of the likelihood of an actual OSHA audit is the safety and health of their employees. However, there are clearly many other collateral reasons that may sometimes be overlooked.