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WA Orders Hazards Fixed During Appeal

Monday, May 2, 2011

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Washington State employers who have been cited for broken equipment, unsafe practices and other serious workplace hazards must now correct those issues immediately, even if the case is being appealed, under a new law.

The law, which Gov. Chris Gregoire signed April 15, amends the 1973 Washington Industrial Safety and Health Act (WISHA) to require businesses to correct serious violations—and the hazards they pose—during the appeal of any safety and health citation.

Formerly, employers had no obligation to correct the hazard for which they were cited until the appeal was resolved, which could take months or years.

Washington is the second state, after Oregon, to pass such a law.

‘Significant Improvement’

“This change to our state worker safety laws offers significant improvement for worker safety,” said Michael Silverstein, assistant director, L&I Division of Occupational Safety and Health, which sought the bill.

“This allows us to ensure that hazards are corrected even as we continue discussions with employers who may disagree with our citations.”

Officials say that Washington State employers face more than 6,000 citations for serious violations each year and that more than 97 percent of those citations are ultimately upheld.

Deaths Cited

The law applies only to serious hazards, which present a “substantial probability” of death or serious injury from a hazard about which an employer knew or should have known. Labor groups and other advocates say the new law will save lives and workers’ compensation costs by preventing accidents.

For example, L&I says, it cited one company in 2006 for several serious violations after a worker suffered lead poisoning. The company appealed and did not correct the hazards. The citation was eventually upheld. However, before the hazards could be corrected, a second worker also suffered lead poisoning.



Hazards need to be corrected while cases are being appealed in Washington State.

A recent U.S Occupational Safety and Health Administration analysis found 33 cases nationwide between FY 1999 and FY 2009 in which a worker died from a hazard that had been cited but not repaired while the case was appealed.

OSHA also reports serious injuries from uncorrected hazards. In one 2009 case, for example, OSHA cited a Connecticut company after an employee fell to his death through an inadequately guarded floor hole. The company contested the citation. Several months later, while the appeal was underway, a second employee fell through a similarly unguarded hole and suffered permanently disabling injuries, OSHA said.

Business Opposition

Several business groups strongly opposed the initial legislation but were somewhat mollified by amendments that allow employers to request postponing the corrective action while their case is under appeal.

Requests for abatement stays will receive expedited review and, “when it’s appropriate and necessary, we will grant a stay,” Silverstein said at a Senate hearing on the bill. Abatement will not be required while the business is awaiting L&I’s decision on the stay.

Business groups also sought assurance that the same evidence that led to the original L&I citation would not then automatically be used to deny a stay. Silverstein said that would not happen.

Scott Dilley, a policy analyst at the Washington Farm Bureau, testified against the bill, saying it was unnecessary. “L&I can shut down any piece of equipment they believe poses” a serious risk, he said. “Let’s work within the system we have.”

Federal Change Sought

The abatement mandate is also being proposed nationally as part of HR 190, the “Protecting America’s Workers Act” (PAWA), which has been introduced and stalled in Congress for several years.
In January, Rep. Lynn D. Woolsey (D-CA) re-introduced the bill in the 112th Congress, and it is now before the Subcommittee on Workforce Protections. The bill has gained 16 co-sponsors, 13 in April alone.

PAWA would provide the first comprehensive overhaul of the Occupational Safety and Health Act, which established OSHA in 1970. The bill would strengthen OSHA’s authority and increase civil and criminal penalties.  OSHA fines have been increased only once in 40 years and are a fraction of the fines that other agencies are allowed to impose, officials say.

“Unscrupulous employers often consider it more cost effective to pay the minimal OSHA penalty and continue to operate an unsafe workplace than to correct the underlying health and safety problem,” OSHA Administrator David Michaels said in testimony on the bill last year. “The current penalties do not provide an adequate deterrent.”

He added: “The only situation worse than a worker being injured or killed on the job by a senseless and preventable hazard is having a second worker felled by the same hazard.”


Tagged categories: Citations; Health and safety; Lead; OSHA; Violations

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