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B.
Types of Violations.
1.
Serious Violations. Section 5-809(a)(1) of
the Act provides "...a violation is considered to be a serious
violation if there is a substantial probability that death or
serious physical harm could result from a condition that exists or a
practice, means, method, operation, or process that has been adopted
or is in use, unless the employer did not and with the exercise of
reasonable diligence could not know of the violation."
a. The CO/IH shall take four steps to make the
determination that a violation is serious. The first three steps determine
whether there is a substantial probability that death or serious physical
harm could result from an accident or exposure relating to the violative
condition. (The probability that an accident or illness will occur is not
to be considered in determining whether a violation is serious.) The
fourth step determines whether the employer knew or could have known of
the violation.
(1)
The violation classification need not be
completed for each instance; only once for each full item or
if items are grouped, once for the group.
(2)
If the full item consists of multiple
instances or grouped items, the classification shall be
based on the most serious item.
b. The four-step analysis as outlined below is necessary
to make the determination that an apparent violation is serious. Apparent
violations of the general duty clause shall also be evaluated on the basis
of these steps to ensure that they represent serious violations. The four
elements the CO/IH shall consider are as follows:
(1)
Step 1. The type of accident or
health hazard exposure which the violated standard or the
general duty clause is designed to prevent.
(a)
The CO/IH need not establish the
exact way in which an accident or health hazard exposure
would occur. The exposure or potential exposure of an
employee is sufficient to establish that an accident or
health hazard exposure could occur. However, the CO/IH
shall note the facts which could affect the severity of
the injury or illness resulting from the accident or
health hazard exposure.
(b)
If more than one type of accident or
health hazard exposure exists which the standard is
designed to prevent, the CO/IH shall determine which
type could reasonably be predicted to result in the most
severe injury or illness and shall base the
classification of the violation on that determination.
(c)
The following are examples of a
determination of the type of accident or health hazard
exposure which a violated standard is designed to
prevent:
1 Employees are observed
working at the unguarded edge of a walking working
surface 30 feet (9 meters) above the ground in
apparent violation of 29 CFR 1926.501(b)(1). This
regulation requires the use of fall protection such as
guardrail systems, safety net systems or personal fall
arrest systems. The type of accident which the
violated standard is designed to prevent involves an
employee falling from the edge of the floor 30
feet (9 meters) to the ground below.
2 Employees are observed
working in an area in which debris is located in
apparent violation of 29 CFR 1926.25(a). The type of
accident which the violated standard is designed to
prevent involves an employee tripping on
debris.
3 An 8-hour time-weighted
average sample reveals regular ongoing employee
over-exposure to beryllium at 4 ug/M3 in
apparent violation of 29 CFR 1910.1000(b)(1). This is
2 ug/M3 above the PEL of health hazard
exposure which the violated standard is designed to
prevent.
4 An 8-hour time-weighted
average sample reveals regular, ongoing employee
over-exposure to acetic acid at 20 ppm in violation of
29 CFR 1910.1000(a)(2). This is 10 ppm above the PEL
of health hazard exposure which the violated standard
is designed to prevent.
(2)
Step 2. The type of injury or illness
which could reasonably be expected to result from the type
of accident or health hazard exposure identified in Step 1.
(a)
In making this determination, the CO/IH
shall consider all factors which would affect the
severity of the injury or illness which could reasonably
be predicted to result from an accident or health hazard
exposure. The CO/IH shall not give consideration at this
point to factors which relate to the probability that an
injury or illness will occur. The following are examples
of a determination of the types of injuries which could
reasonably be predicted to result from an accident:
1 If an employee falls from the
edge of an open-sided floor 30 feet (9 meters) to the
ground below, that employee could break bones, suffer
a concussion, or experience other more serious
injuries.
2 If an employee trips on
debris, that employee could experience abrasions or
bruises, but it is only marginally predictable that
the employee could suffer a substantial impairment of
a bodily function. If, however, the area were littered
with broken glass or other sharp objects, it would be
reasonable to predict that an employee who tripped on
debris could suffer a deep cut which could require
suturing.
(b)
For conditions involving exposure to
air contaminants or harmful physical agents, the CO/IH
shall consider the concentration levels of the
contaminant or physical agent in determining the types
of illness which could reasonably result from the
condition. The Substance Toxicity Table found in the IH
Technical Manual shall be used to determine
toxicological properties of substances listed as well as
a Health Code Number. A preliminary violation
classification shall be assigned in accordance with the
instructions given in this section.
(c)
In order to support a preliminary
classification of serious, MOSH must establish a prima
facie case that exposure at the sampled level
would, if representative of conditions to which
employees are normally exposed, lead to illness. Thus
the CO/IH must make every reasonable attempt to show
that the sampled exposure is in fact representative of
employees' exposure under normal working conditions. The
CO/IH shall, therefore, identify and record all
available evidence which indicates the frequency and
duration of employee exposure. Such evidence would
include:
1 The nature of the operation
from which the exposure results.
2 Whether the exposure is
regular and ongoing or of limited frequency and
duration.
3 How long employees have
worked at the operation in the past.
4 Whether employees are
performing functions which can be expected to continue.
5 Whether work practices,
engineering controls, productions levels and other
operating parameters are typical of normal operations.
(d)
Where such evidence is difficult to
obtain or where it is inconclusive, the CO/IH shall
estimate the frequency and duration from the evidence
available. In general, if the evidence tends to indicate
that it is reasonable to predict that regular, ongoing
exposure could occur, the CO/IH shall presume such
exposure in determining the types of illnesses which could
result from the violative condition. The following are
examples of determinations
of types of illnesses which could reasonably result from a
health hazard exposure:
1 If an employee is exposed
regularly and continually to beryllium at 4 ug/M3,
it is reasonable to predict that berylliosis or cancer
could result.
2 If an employee is exposed
regularly and continually to acetic acid at 20 ppm, it
is reasonable to predict that the illness which could
result (i.e., irritation to nose, eyes, throat) would
not involve serious physical harm.
(3)
Step 3. Whether the types of injury or
illness identified in Step 2 could include death or a form of
serious physical harm.
(a)
In making this determination, the CO/IH
shall utilize the following definition of "serious
physical harm":
1 Impairment of the body, in
which part of the body is made functionally useless
or is substantially reduced in efficiency on or
off the job. Such impairment may be permanent or
temporary, chronic or acute. Injuries involving such
impairment would usually require treatment by a
medical doctor. Examples of injuries which constitute
such harm include:
a Amputation (loss of all
or part of a bodily appendage which includes the
loss of bone).
b Concussion.
c Crushing (internal, even
though skin surface may be intact).
d Fracture, simple or
compound.
e Burn or scald, including
electric and chemical burns.
f Cut, laceration, or
puncture involving significant bleeding and/or
requiring suturing.
2 Illnesses that could shorten
or significantly reduce physical or mental efficiency
by inhibiting the normal function of a part of the
body. Some examples of such illnesses include cancer,
silicosis, asbestosis, byssinosis, hearing impairment,
central nervous system impairment and visual
impairment. Examples of illnesses which constitute
serious physical harm include:
a Cancer.
b Poisoning (resulting from
the inhalation, ingestion or skin absorption of a
toxic substance which adversely affects a bodily
system).
c Lung diseases, such as
asbestosis, silicosis, anthracosis.
d
Hearing loss.
(b)
The following are examples of
determinations of whether the types of injury or
illnesses which could reasonably result from an accident
or health hazard exposure could include death or serious
physical harm:
1 If an employee, upon falling
30 feet (9 meters) to the ground, suffers broken bones
or a concussion, that employee would experience
substantial impairment of the usefulness of a part of
the body and would require treatment by a medical
doctor. This injury would constitute serious physical
harm.
2 If an employee, tripping on
debris, suffers a bruise or abrasion, that employee
would not experience substantial reduction of the
usefulness of a part of the body nor would that
employee require treatment by a medical doctor. This
injury would not be serious. However, if the employee
would most likely suffer a deep cut of the hand, the
use of the hand would be substantially reduced and
would require suturing by a medical doctor. This
injury would then be serious.
3 If an employee, following
exposure to beryllium at 4 ug/M3, develops
berylliosis or cancer, life would be shortened and
breathing capacity would be significantly reduced. The
illness would constitute serious physical harm.
4 If an employee is exposed
regularly and continually to acetic acid at 20 ppm,
the irritation that would result from this exposure
would not normally be considered to constitute serious
physical harm.
(4)
Step 4. The fourth step determines
whether the employer knew or could have known of the
violation. This step is normally the most difficult of all
for the CO/IH to understand and document.
(a)
Actual Knowledge. Employer's
knowledge of a hazardous and violative condition may be
proven by actual knowledge or constructive knowledge.
Actual knowledge is where an employer admits to knowing
of, or was observed viewing the hazardous condition. In
this regard, the supervisor or foreman represents the
employer and his or her knowledge of the hazardous
condition amounts to employer knowledge. In some cases
the employer, on defense, may contend that the
supervisor's own conduct constituted an isolated event
of employee misconduct. The CO/IH must attempt to
determine the extent to which the supervisor was trained
and supervised so as to prevent such conduct.
(b)
Constructive Knowledge. If, after
reasonable attempts to do so, it cannot be determined
that the employer has actual knowledge of the hazardous
condition, constructive knowledge may be used to show
that because of circumstances the employer either knew
or should have known of the condition had he or she
exercised the diligence of a reasonable person.
Constructive knowledge or circumstantial evidence as it
is sometimes called, allows MOSH to prove employer
knowledge by demonstrating the existence of a fact or
facts from which the employer's knowledge can be
inferred. The following are examples of constructive
knowledge:
1 By proving that an employer
has been cited several times for the same hazardous
condition, it can be inferred that the employer had
notice that his or her employees were violating a
particular standard and had he or she made a
reasonable effort to inspect his or her worksite the
employer would have known of the hazardous condition.
2 By proving that an employee
had warned the employer of the existence of a
hazardous condition, we can infer that the employer
knew or should have known of the hazardous condition,
had he or she exercised reasonable diligence, by
investigating the employee's complaint.
3 By proving that an employer
inspects his worksite daily, that he or she inspected
the work place on the date in question, and that the
hazardous condition existed and was readily detectable
on that day.
In summary, constructive knowledge
can be established by proving that the situation existed
for a reasonable amount of time so that the employer
either knew of its existence or should have known had he
or she made a reasonable inspection of the work place.
2.
Other-than-Serious Violations. This type of
violation shall be cited in situations where an accident or illness
results from a hazardous condition that would probably not cause
death or serious physical harm but would have a direct and immediate
relationship to the safety and health of employees.
3.
Willful Violations. The following definitions
and procedures apply whenever the CO/IH suspects that a willful
violation may exist:
(a) A willful violation exists under the Act where the
evidence shows either an intentional violation of the Act or plain
indifference to its requirements.
(1) The employer committed an intentional and knowing
violation if:
(a)
An employer representative was aware
of the requirements of the Act, or the existence of an
applicable standard or regulation, and was also aware of
a condition or practice in violation of those
requirements.
(b)
An employer representative was not
aware of the requirements of the Act or standards, but
was aware of a comparable legal requirement (e.g., state
or local law) and was also aware of a condition or
practice in violation of the requirements.
(2)
The employer committed a violation with
plain indifference to the law where:
(a)
Higher management officials were
aware of a MOSH requirement applicable to the company's
business but made little or no effort to communicate the
requirement to lower level supervisors and employees.
(b)
Company officials were aware of a
continuing compliance problem but made little or no
effort to avoid violations.
EXAMPLE: Repeated issuance of
citations addressing the same or similar
conditions.
(c)
An employer representative was not
aware of any legal requirement, but was aware that a
condition or practice was hazardous to the safety or
health of employees and made little or no effort to
determine the extent of the problem or to take the
corrective action. Knowledge of a hazard may be gained
from such means as insurance company reports, safety
committee or other internal reports, the occurrence of
illnesses or injuries, media coverage, or, in some
cases, complaints of employees or their representatives.
(d)
Finally, in particularly flagrant
situations, willfulness can be found despite lack of
knowledge of either a legal requirement or the existence
of a hazard if the circumstances show that the employer
would have placed no importance on such knowledge even
if it had had it.
b. It is not necessary that the violation be committed
with a bad purpose or an evil intent to be deemed "willful." It
is sufficient that the violation was deliberate, voluntary or intentional
as distinguished from inadvertent, accidental or ordinarily negligent.
c. The CO/IH shall carefully develop and document all
evidence available that indicates employer awareness of the disregard for
statutory obligations or of the hazardous conditions. Willfulness could
exist if an employer is advised by employees or employee representatives
regarding an alleged hazardous condition and the employer does not make a
reasonable effort to verify and correct the condition. Additional factors
which can influence a decision as to whether violations are willful
include:
(1)
The nature of the employer's business and
the knowledge regarding safety and health matters which
could reasonably be expected in the industry.
(2) The precautions taken by the employer to limit the
hazardous conditions.
(3) The employer's awareness of the Act and of the
hazardous conditions.
(4)
Whether similar violations and/or
hazardous conditions have been brought to the attention of
the employer.
(5)
Whether the nature and extent of the
violations disclose a purposeful disregard of the
employer's responsibility under the Act.
d. The determination of whether to issue a citation for a
willful or repeated violation will frequently raise difficult issues of
law and policy and will require the evaluation of complex factual
situations. Accordingly, a citation for a willful violation shall not be
issued without consultation with the Assistant Commissioner/Authorized
Representative, who shall, as appropriate, discuss the matter with the
Office of the Attorney General.
4.
Criminal/Willful Violations. Section 5-806 of
the Act provides that: "If an employer willfully violates any
provision of this title, an order passed under this title, or a
regulation adopted to carry out this title and the violation caused
death to an employee, on conviction the employer is subject to:
(1) for a first offense, a fine not
exceeding $10,000.00 or imprisonment not exceeding 6 months
or both; or
(2) for a subsequent offense, a fine not
exceeding $20,000.00 or imprisonment not exceeding 1 year or
both."
a. The MOSH Supervisor, in coordination with the Assistant
Commissioner/Authorized Representative and the Office of the Attorney
General, shall carefully evaluate all cases involving workers' deaths to
determine whether they suggest a criminal violation of the Act.
b. In cases where an employee's death has occurred which
may have been caused by a willful violation of a MOSH standard, the MOSH
Supervisor shall be consulted prior to the completion of the investigation
to determine whether evidence exists and whether further evidence is
necessary to establish the elements of a criminal/willful violation. The
MOSH Supervisor shall consult the Assistant Commissioner/Authorized
Representative and, if appropriate, with the Office of the Attorney
General after the initial determination has been made concerning possible
willful violation.
c. The following criteria shall be considered in
investigating possible criminal/willful violations:
(1)
Establishment of Criminal/Willful. In
order to establish a criminal/willful violation MOSH must
prove that:
(a)
The employer violated a MOSH standard
or the general duty provision of the Act.
(b)
The violation was willful in nature;
i.e.:
1 The employer had knowledge of
the hazardous working conditions. Knowledge could be
demonstrated through such evidence as the foreman
having been in the vicinity of an unshored, unsloped
trench in which employees are working.
2 The employer had knowledge of
the requirements of the applicable standard.
a Proving knowledge of the
requirements of the applicable standard may
present greater difficulties. Evidence of
knowledge of the applicable standard gained
through a prior citation, discussions with MOSH or
other safety personnel of the requirements of the
standard, or other similar evidence would be
sufficient to support this element of knowledge.
b In addition, it may be
possible to establish willfulness, even in the
absence of specific knowledge of the MOSH
standard, where the requirements of the standard
are known to the employer. Where it can be shown
that it was recognized by the employer that
certain precautions must be taken in order to make
a trench safe, either through the employer's past
practice of shoring or sloping, through employee
complaints, or otherwise, knowledge of the
standard's requirement will have been shown.
c Finally, in particularly
flagrant situations, willfulness can be proved
where employees are exposed to a working condition
which a reasonably prudent employer should have
recognized as being hazardous and requiring
corrective action. Even in the absence of evidence
that an employer knew that specific precautions
should have been taken, if the working conditions
are so obviously hazardous and the accepted
industry practice is to take certain precautions,
an employer's conduct could constitute a willful
violation.
NOTE: It must be emphasized
that, particularly with regard to this
situation, a key element of willfulness is
flagrancy of the conduct and the employer's
plain indifference to employee safety.
(c)
The violation of the standard caused
the death of an employee. In order to prove that the
violation of the standard caused the death of an
employee, there must be evidence in the file which
clearly demonstrates that the violation of the standard
was the cause of or a contributing factor to an
employee's death.
(2)
MOSH Supervisor's Responsibilities.
(a)
If the MOSH Supervisor determines
that expert assistance is needed to prove the causal
connection between an apparent violation of the standard
and the death of an employee, such assistance shall be
obtained in accordance with instructions in Chapter III.
(b)
Following the investigation of a
fatality where willful charges are recommended, a
memorandum shall be prepared by the MOSH Supervisor
addressing the issue of criminal charges and included in the case file. A greater burden of
proof is required in criminal cases and the State's case
must be proven beyond a reasonable doubt.
5.
Repeated Violations. An employer may be cited
for a repeated violation if the same standard has been
violated, there is a substantial similarity of violative elements
between the current and prior violation(s), and the prior citation
on which the repeated violation is based has become the final order
of the Commissioner.
a. Identical Standard. Generally, similar conditions
can be demonstrated by showing that in both situations the identical
standard was violated.
EXCEPTION: Previously
a citation was issued for a violation of 29 CFR
1910.132(a) for not requiring the use of safety-toe
footwear for employees. A recent inspection of the same
establishment revealed a violation of 29 CFR 1910.132(a)
for not requiring the use of head protection (hard
hats). Although the same standard was involved, the
hazardous conditions found were not substantially
similar and therefore a repeated violation would not be
appropriate.
b. Geographical Limitations. For purposes of
determining whether a violation is repeated, the following criteria shall
apply:
(1) Fixed Establishment. A fixed
establishment is interpreted to mean "a single physical
location where business is conducted or where services or
industrial operations are performed," as defined in
COMAR 09.12.20.01.B. For purposes of considering whether a
violation is repeated, citations issued to employers having
fixed establishments (e.g., factories, terminals, stores)
shall be limited to the cited establishment.
EXAMPLE:
A
multi-establishment employer would not be cited for
a repeated violation if the same violation recurred
at a plant or business location other than the one
previously cited.
(2)
Nonfixed Establishment. A nonfixed
establishment (e.g., construction sites, oil and gas
drilling sites) is interpreted to mean all geographical
sites or locations within the State of Maryland, where
construction, drilling, or other movable operation is being
performed by the employer. For employers engaged in
businesses having no fixed establishments, repeated
violations will be alleged based on prior violations
occurring anywhere within the State.
EXAMPLE: Where
the construction site extends over a large area
and/or the scope of the job is unclear (such as road
building), that portion of the workplace specified
in the employer's contract which falls within the
State of Maryland is the establishment. If an
employer has several worksites within the State, a
citation of a violation at Site A will serve as the
basis for a repeated citation at Site B.
c. Time Limitations. Although there are no statutory
limitations upon the length of time that a citation may serve as the basis
for a repeated violation, in order to ensure uniformity, 3 years from the
date that the earlier citation became a final order or 3 years from the
final abatement date of that citation, whichever is later, shall be the
maximum time period within which another violation of the same standard
may be classified as repeated. The "window of view" shall
increase to as much as 5 years when additional repeat offenses occur.
d. Repeated vs. Willful. Repeated violations differ
from willful violations in that they may result from an inadvertent,
accidental or ordinarily negligent act. Where a repeated violation may
also meet the criteria for willful but the element of willfulness cannot
be sufficiently proved, a citation for a repeated violation shall normally
be issued with the penalty calculated as indicated in Chapter VI. In such
cases, the Assistant Commissioner/Authorized Representative shall be
consulted.
e. Repeated vs. Failure to Correct. A failure to
correct situation exists when an item of equipment or condition previously
cited has never been abated and is noted at a later inspection. If,
however, the violation was not continuous (i.e., if it has been abated and
reoccurred) the subsequent reoccurrence is a repeated violation.
f. MOSH Supervisor's Responsibilities. After the CO/IH
makes the initial recommendation that the violation be cited as
"repeated", the MOSH Supervisor shall:
(1)
Ensure that the violation meets the
criteria outlined in this chapter.
(2)
Ensure the basis for the repeated
citation is adequately documented in the case file.
(3)
In unique or unusual circumstances (e.g.,
when a previously cited employer has been bought out by a
successor employer), take further steps, as necessary, to
ensure that the violation meets the criteria outlined in
this instruction before being cited as a repeated violation.
A violation will be cited as repeated, if there has been no
substantial change in management, operations, process, or
equipment.
6.
De Minimis Violations. De minimis violations
are violations of standards which have no direct or immediate
relationship to employee safety or health. Whenever de minimis
conditions are found during an inspection they shall be documented
but no De minimis Notice shall be issued.
a. Explanation. The criteria for finding a de minimis
violation are as follows:
(1)
An employer complies with the clear
intent of the standard but deviates from its particular
requirements in a manner that has no direct or immediate
relationship to employee safety or health. These deviations
may involve distance specifications, construction material
requirements, use of incorrect color, minor variations from
recordkeeping, testing, or inspection regulations, etc.
EXAMPLES:
(a) 29 CFR 1910.27(b)(1)(ii) allows
12 inches (30 centimeters) as the maximum distance
between ladder rungs. Where the rungs are 13 (33
centimeters) inches apart, the condition is de minimis.
(b) 29 CFR 1910.28(c)(14)
requires guarding on all open sides of
scaffolds. Where employees are tied off with personal
fall protection in
lieu of guarding, often the intent of the standard will
be met; and the absence of guarding will be de minimis.
(c) 29 CFR 1910.217(e)(l)(ii)
requires that mechanical power presses be inspected and
tested at least weekly. If the machinery is seldom used,
inspection and testing prior to each use is adequate to
meet the intent of the standard.
(2)
An employer complies with a proposed
standard or amendment or a consensus standard rather than
with the standard in effect at the time of the inspection
and the employer's action clearly provides equal or greater
employee protection.
(3)
An employer's workplace is at the
"state of the art" which is technically beyond the
requirements of the applicable standard and provides
equivalent or more effective employee safety or health
protection.
b. Professional Judgment. Maximum professional
discretion must be exercised in determining the point at which compliance
with a standard constitutes a de minimis violation.
c. MOSH Supervisor's Responsibilities. MOSH Supervisors shall ensure
that the de minimis violation meets the criteria set out above.
Continued
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