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Failure to Abate

Cotney Failure to Abate
August 25, 2021 at 6:00 p.m.

When an employer receives a citation, it must be abated, or corrected, usually within 20 days of a settlement.

Most contractors dread OSHA inspections, fearing the discovery of violations that often result in citations and fines. There is good reason for such anxiety. For even the most careful and safety-conscious contractors, citations can hurt their reputations, and fines can be costly.  

First-time offenders can usually rectify safety issues and be spared the most expensive penalties. However, in July 2021, a New Jersey roofing contractor discovered just how detrimental the “failure to abate” violation can be. 

Types of OSHA Violations 

OSHA categorizes violations based on their severity. For instance, an “other-than serious” violation is one that poses a safety hazard but would not likely result in serious harm or death. In contrast, a “serious” violation indicates a safety hazard that probably would result in serious injury or death. A “willful” violation is one that indicates the employer was aware of a safety hazard and made no effort to correct it. And a “repeated” violation is one that the employer commits over and over. The “failure to abate” violation indicates that a problem from a previous OSHA citation has not been corrected. 

When an employer receives a citation, it must be “abated.” The violation must be corrected in compliance with the law, usually within 20 days of a settlement. However, a longer abatement term can be permitted via a settlement agreement. OSHA conducts follow-up inspections to evaluate and ensure abatement. Failure to abate can result in substantial penalties:  as much as $13,653 per day, for each violation, beyond the abatement date.  

The New Jersey Case 

After inspections in December 2020 and January 2021, OSHA cited a Bergen County roofing contractor for infractions involving fall protection and other safety violations. The inspections led to nine citations—two willful, three serious, and four repeat—and penalties in the amount of $420,521. These substantial citations also led to a damaging press release, which was a public relations disaster for the company. In reaction, the contractor agreed to a settlement that included proposed penalties of $121,687 and plans for establishing a thorough written health and safety program, creating daily safety checklists, and providing training to managers and other workers.  

However, when OSHA conducted a follow-up inspection in 2021, the agency evaluated the contractor’s actions and determined that it continued to put its workers at risk and failed to comply with the settlement terms. As a result, the contractor is now facing penalties of $600,741 for ten violations. This number includes a failure to abate, carrying a fine of $180,220. 

In a statement from OSHA, the area director said that the contractor’s “failure to honor its agreement with OSHA and knowingly put workers at risk of serious injuries or worse is inexcusable.” The official went on to state that “OSHA will not hesitate to hold employers accountable when they ignore their legal responsibility and jeopardize the well-being of their hard-working employees.”  

The Takeaway for Contractors 

While following all the OSHA regulations and preparing for an OSHA inspection can seem daunting, it is essential that you make every effort to comply with agency guidelines. Further, if you are cited for violations, you must correct those safety hazards and prove to OSHA that you prioritize your workers’ safety. Failing to abate can be costly—for both your business’s reputation and your bottom line. 

If you or your workers have questions about OSHA regulations or you have concerns about a citation you have received, be sure to consult legal counsel. Experienced OSHA defense attorneys can help you review the issues you are facing and make the best decisions for protecting your company and your employees. 

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation. 

Trent Cotney is an advocate for the roofing industry, General Counsel of the National Roofing Contractors Association (NRCA) and several other industry associations. For more information, contact the author at 866.303.5868 or go to www.cotneycl.com.



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