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E. Affirmative Defenses.
1. Definition. An affirmative defense is any matter
which, if established by the employer, will excuse the employer from a
violation which has otherwise been proven by MOSH.
2. Burden of Proof. Although affirmative defenses must
be proved by the employer at the time of the hearing, MOSH must be
prepared to respond whenever the employer is likely to raise or actually
does raise an argument supporting such a defense. The CO/IH therefore,
shall keep in mind the potential affirmative defenses that the employer
may make and, when appropriate, attempt to gather contrary evidence.
3. Explanations. The following are explanations of the
more common affirmative defenses with which the CO/IH shall become
familiar. There are other affirmative defenses besides these, but they are
less frequently raised or are such that the facts which can be gathered
during the inspection are minimal.
a. Unpreventable Employee Misconduct or "Isolated
Event". The violative conduct was:
(1) Unknown to the employer; and
(2) In violation of an adequate work rule
which was effectively communicated and uniformly enforced.
EXAMPLE: An unguarded table saw is
observed. The saw, however, has a guard which is
reattached while the CO/IH watches. Facts which the CO/IH
shall document may include:
1 Who removed the guard and
why?
2 Did the employer know that
the guard had been removed?
3 How long or how often had the
saw been used without guards?
4 Did the employer have a work
rule that the saw guards not be removed?
5 How was the work rule
communicated?
6 Was the work rule enforced?
b. Impossibility. Compliance with the requirements of
a standard is:
(1) Functionally impossible or would prevent
performances of required work; and
(2) There are no alternative means of employee protection.
EXAMPLE: During the course of the
inspection an unguarded table saw is observed. The
employer states that the nature of its work makes a
guard unworkable. Facts which the CO/IH shall document
may include:
1 Would a guard make
performance of the work impossible or merely more
difficult?
2 Could a guard be used part of
the time?
3 Has the employer attempted to
use guards?
4 Has the employer considered
alternative means or methods of avoiding or reducing
the hazard?
c. Greater Hazard. Compliance with a standard would
result in greater hazards to employees than noncompliance and:
(1) There are no alternative means of employee protection;
and
(2) An application of a variance would be inappropriate.
EXAMPLE: The employer indicates that
a saw guard had been removed because it caused particles
to be thrown into the operator's face. Facts which the
CO/IH shall consider may include:
1 Was the guard used properly?
2 Would a different type of
guard eliminate the problem?
3 How often was the operator
struck by particles and what kind of injuries
resulted?
4 Would safety glasses, a face
mask, or a transparent shield attached to the saw
prevent injury?
5 Was operator technique at
fault and did the employer attempt to correct it?
6 Was a variance sought?
d. Documentation Requirements. Where it becomes
evident, either from statements made during the inspection by the employer
or other persons or from the circumstances surrounding the apparent
violation(s) that one or more of the above affirmative defenses may be an
issue, the CO/IH shall make reasonable efforts to gather and record facts
relevant to the defense. The CO/IH shall bring the documentation of the
hazards and facts related to possible affirmative defenses to the
attention of the MOSH Supervisor. Where it appears that each and every
element of an affirmative defense is present, the MOSH Supervisor may
decide that a citation shall not be issued. Where an element is unclear
the MOSH Supervisor shall consult with the Assistant
Commissioner/Authorized Representative.
F.
Issuing Citations - Special Circumstances.
1. Follow-up Inspections. Follow-up inspections may be
conducted during the 15-day notice of contest period provided the employer
has not actually filed such a notice. Normally, however, only those
conditions considered high gravity serious shall be subject to being
scheduled for follow-up during the contest period. If such a follow-up
inspection reveals a failure to abate, and the time specified for
abatement was passed, a Notification of Failure to Abate Alleged Violation
(OSHA-2B) may be issued immediately without regard to the contest period
of the initial citation.
2. Multi-Employer Worksites. This paragraph has been
replaced by a revised multi-employer policy contained in MOSH Instruction
01-1.
a. The following employers normally shall be cited,
whether or not their own employees are exposed: (NOTE: Only exposing
employers can be cited for general duty clause violations.)
(1). The employer who actually creates the hazard (the
creating employer);
(2) The employer who is responsible, by
contract or through actual practice, for safety and health
conditions on the worksite (i.e., the employer who has the
authority for ensuring that the hazardous condition is
corrected (the controlling employer));
(3) The employer who has the responsibility
for actually correcting the hazard (the correcting
employer).
b. It must be shown that each employer to be cited has
knowledge of the hazardous condition or could have had such knowledge with
the exercise of reasonable diligence.
c. Prior to issuing citations to an exposing employer, it
must first be determined whether the available facts indicate that
employer has a legitimate defense to the citation, as set forth below:
(1) The employer did not create the hazard;
(2) The employer did not have the
responsibility or the authority to have the hazard
corrected;
(3) The employer did not have the ability to correct or
remove the hazard;
(4) The employer can demonstrate that the
creating, the controlling and/or the correcting employers,
as appropriate, have been specifically notified of the
hazards to which his/her employees are exposed;
(5) The employer has instructed his/her
employees to recognize the hazard and, where necessary,
informed them how to avoid the dangers associated with it
when the hazard was known or with the exercise of reasonable
diligence could have been known.
(a)
Where feasible, an exposing employer
must have taken appropriate alternative means of
protecting employees from the hazard.
(b)
When extreme circumstances justify
it, the exposing employer shall have removed his/her
employees from the job to avoid citation.
NOTE: All of these items must be documented
in the case file.
d. If an exposing employer meets all the conditions above,
that employer shall not be cited. If all employers on a worksite with
employees exposed to a hazard meet these conditions, then the citation
shall be issued to the employer who is in the best position to correct the
hazard or to ensure its correction (the controlling employer). In such
circumstances the controlling employer shall be cited even though no
employees of that employer are exposed to the violative condition.
Penalties for such citations shall be calculated as indicated in Chapter
VI, using the exposed employees of all exposing employers as the number of
employees for probability assessment.
G.
Amending or Withdrawing Citation and Notification of
Penalty in Part or in its Entirety.
1. Citation Revision Justified. Amendments to or
withdrawal of a citation shall be made when information is presented to
the Assistant Commissioner/Authorized Representative which indicates a
need for such revision under certain conditions which may include:
a. Administrative or technical error.
(1) Citation of an incorrect standard.
(2) Incorrect or incomplete description of the alleged
violation.
b. Additional facts establish a valid affirmative defense.
c. Additional facts establish that there was no employee
exposure to the hazard.
d. Additional facts establish a need for modification of
correction date, penalty or reclassification of citation items.
e. Any other sufficient and justifiable reasons.
2. Citation Revision Not Justified. Recommendations
for amendments to or withdrawal of a citation shall not be made by the
MOSH Supervisor under certain conditions which include:
a. Valid notice of contest received. (See Section H.3,
Post-Contest Settlement, of this
chapter.)
b. The 15 working days for filing a notice of contest has
expired and citation has become a final order.
c. Employee representatives have not been given the
opportunity to present their views unless the revision involves only an
administrative or technical error.
d. Editorial and/or stylistic modifications.
3. Procedures for Amending or Withdrawing Citations.
The following procedures are to be followed in amending or withdrawing
citations:
a. If proposed amendments to citation items change the
classification of the items (e.g., serious to other-than-serious) the
original citation items shall be withdrawn and new, appropriate citation
items issued.
b. The amended Citation and Notification of Penalty Form
(OSHA-2) shall clearly indicate that:
(1) The employer is obligated under the Act
to post the amendment to the citation along with the
original citation until the amended violation has been
corrected or for three working days;
(2) The period of contest of the amended
portions of the OSHA-2 will begin from the day following the
date of receipt of the amended Citation and Notification of
Penalty;
(3) The contest period is not extended as to
the unamended portions of the original citation; and
(4) The amended citation shall be accompanied
by a letter of explanation of the amendment.
c. A copy of the original citation shall be attached to
the amended Citation and Notification of Penalty form when the amended
form is forwarded to the employer.
d. A citation may be withdrawn in its entirety by the
Assistant Commissioner/Authorized Representative. If that is to be done,
the following procedures apply:
(1) A letter withdrawing the Citation and
Notification of Penalty shall be sent to the employer. The
letter shall refer to the original citation and penalty,
state that they are withdrawn and direct that the letter be
posted by the employer for three working days in those
locations where the original citation was posted.
(2) When applicable to the specific
situation, a copy of the letter shall also be sent to the
employee or the employee representative as appropriate
(e.g., an employee representative participated in the walk
around inspection, the inspection was in response to a
complaint signed by an employee or an employee
representative, or the withdrawal resulted from an informal
conference or settlement agreement in which an employee
representative exercised the right to participate).
e. The instructions contained in this section, with
appropriate modification, are also applicable to the amendment of the
Notification of Failure to Correct, OSHA-2B Form, and to citations for
repeated or willful violations.
H.
Settlement of Cases.
1. General. In order to make the informal conference a
more significant and uniformly used element of the enforcement process, to
expedite the correction of hazards by avoiding the delays involved in
unnecessary litigation, and to give employers an opportunity to resolve
citations without engaging in protracted litigation, the Commissioner has
delegated settlement authority to the Assistant Commissioner/Authorized
Representative. The following policy guidelines shall be adhered to when
attempting to negotiate settlement agreements.
a. The Assistant Commissioner/Authorized Representative
shall send a cover letter to employers with each set of citations issued.
The letter shall notify employers of the opportunity to discuss amendments
to citations and proposed penalties during an informal conference. The
cover letter shall also be sent to the employee representatives to inform
them of the informal conference opportunity.
b. The Assistant Commissioner/Authorized Representative is
authorized to enter into Informal Settlement Agreements with an employer
before the employer files a notice of contest. Even after the employer has
filed a notice of contest, the Assistant Commissioner/Authorized
Representative may enter into a Formal Settlement Agreement in cases where
a settlement appears probable without the need for participation of an
attorney. Such settlement action shall be coordinated with the Office of
the Attorney General.
(1) The Assistant Commissioner/Authorized
Representative is authorized to change the dates for
correction of violations, to change the classification of
the violation (e.g., willful to serious, serious to
other-than-serious), or to change or withdraw a penalty, a
citation, a violation, or an item if the employer presents
evidence as a result of an informal conference which
convinces the Assistant Commissioner/Authorized
Representative that the changes are justified. Adequate
documentation of settlement negotiations and the
justification for any changes made shall be placed in the
case file.
(2) Employers shall be informed that they are
required by COMAR 09.12.20.08 to post copies of all
amendments or changes resulting from informal conferences.
Employee representatives must also be provided with copies
of such documents. This regulation covers amended citations,
citation withdrawals and settlement agreements.
c. Employee representatives shall be afforded the
opportunity to participate in the informal conferences and attendant
negotiations. The employer has the option of having the informal
conference conducted jointly or separately with employee representatives.
Separate discussions shall also be conducted if the employee
representative so requests.
2. Pre-Contest Settlement (Informal Settlement Agreement).
Informal Settlement Agreements will normally result from an informal
conference.
a. If a settlement is reached during the informal
conference, an Informal Settlement Agreement shall be prepared in
accordance with current MOSH policies and practices and will be signed by
the employer. The Assistant Commissioner/Authorized Representative shall
review, and if in agreement, will sign and date the Informal Settlement
Agreement after the employer has signed.
(1) If the employer representative requests
more time to consider the agreement and if there is
sufficient time remaining of the 15 working day period for
the employer to file a notice of contest, the MOSH
Supervisor may give the employer an unsigned draft of the
proposed settlement to study while considering whether to
sign the agreement.
(2) Under these circumstances, the MOSH
Supervisor shall remind the employer that the citation will
become final and unreviewable at the end of the contest
period unless the employer either signs the agreement,
approved by the Assistant Commissioner/Authorized
Representative, or files a notice of contest.
NOTE: If the employer signs the
draft settlement agreement and returns it by mail, the
Assistant Commissioner/Authorized Representative may
execute the agreement as long as it is postmarked
prior to the expiration of the contest period.
b. If informal settlement efforts are unsuccessful and the
employer contests the citation, the terms of the final settlement offer
shall be placed in the case file.
3. Post-Contest Settlement (Formal Settlement Agreement).
Post-contest settlements will generally occur before the case is presented
to the Administrative Law Judge.
a. Following the filing of a notice of contest, the
Assistant Commissioner/Authorized Representative shall notify the Office
of the Attorney General when it appears that negotiations with the
employer may produce a settlement.
b. If an Assistant Attorney General agrees that the case
is one which the Assistant Commissioner/Authorized Representative should
attempt to settle, the Assistant Attorney General shall immediately
contact the employer and file a request with the Administrative Law Judge
for an extension of time to pursue settlement. The Assistant
Commissioner/Authorized Representative and the Assistant Attorney General
shall then attempt to negotiate a settlement.
c. If a settlement is effected, the Assistant
Commissioner/Authorized Representative shall:
(1) Communicate the terms of the settlement
to the Assistant Attorney General who will then draft the
settlement agreement, or
(2) Submit a draft settlement agreement to
the Assistant Attorney General for legal review.
d. The procedure for preparing the Formal Settlement
Agreement during the post-contest stage shall be established by the
Assistant Commissioner/Authorized Representative in conjunction with the
Office of the Attorney General. The procedures may vary somewhat with each
case, depending upon the complexity of the agreement and the time
available for preparation of the documents. When an agreement is signed by
all parties, the Assistant Attorney General will submit it to the
Assistant Commissioner/Authorized Representative for approval.
(e) If the Assistant Commissioner/Authorized Representative
is unable to settle the case, the Assistant Attorney General shall be
notified promptly of this and of the terms of the final settlement offer.
The Office of the Attorney General will continue the established practice
of consulting with the Assistant Commissioner/Authorized Representative on
settlement negotiations during the litigation stage of enforcement.
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