Do You Really Need To Care About OSHA?

By
March 29, 2018

There seems to be a fair amount of confusion among farmers as to what role the Occupational Safety and Health Administration (OSHA) plays in regulating farming operations.  Among questions we get are “Do I as a farmer need to care about OSHA?” and “Does OSHA regulate farms the same as other businesses?”

There is a widespread belief that farms are completely exempt from OSHA regulation.  That is not the case.  What is true is that OSHA regulations apply to all “farming operations.”  But, and it’s a big “but,” OSHA cannot inspect or issue citations to farming operations that have had ten or fewer employees during the past 12 months and that have not had an active temporary labor camp during the past 12 months.

A “farming operation” means any operation involved in the growing or harvesting of crops or the raising of livestock or poultry, and related activities by a farmer on farms, ranches, orchards, and similar places.  When determining the number of “employees” of a farming operation, the spouse, children, parents, and grandparents of the employer are not counted.

Farming operations that are too large to qualify for the small farm exemption are subject to OSHA regulations in three ways:
  1. Ag-specific.  Operations are subject to the following areas of regulation that are specific to agriculture:
    1. Temporary labor camps;
    2. Storage and handling of anhydrous ammonia;
    3. Logging operations;
    4. Slow-moving vehicles;
    5. DOT markings and labels;
    6. Hazard communication;
    7. Use of cadmium;
    8. Rollover protection for tractors;
    9. Equipment guarding; and
    10. Field sanitation.
  2. General Industry Standards.  If something presents a hazard on the farm that does not fall into one of the above categories, OSHA may look to the regulations that govern industries in general to see if it is regulated there.
  3. General Duty Clause.  If a general industry standard does not apply, OSHA may look to the “general duty clause.”  This acts as a catch-all regulation.  It requires employers to provide employees a workplace that is “free from recognized hazards that are causing or likely to cause death or serious physical harm.”

The general duty clause can pose a trap for unsuspecting farm employers because a citation can be issued for an alleged violation even if there is not a specific regulation governing that condition.  In order for OSHA to successfully prosecute a violation under the general duty clause, it has the burden to prove that:

    1.  A hazard was present;
    2. The condition was known to the farmer or should have been known because it was recognized as a hazard by the farmer or within the agriculture industry;
    3. The hazard was likely to cause death or serious physical harm; and
    4. There was a feasible way to eliminate or materially reduce the hazard.

OSHA can enforce its regulations by conducting inspections, issuing citations, and imposing penalties.  The topic of OSHA inspections could take up an entire column, but the most important point is to be prepared for an inspection ahead of time.  This certainly includes removing potential safety hazards.  But, it also means being aware of what your rights are in the event an OSHA inspector shows up, such as knowing what you are required and not required to show or disclose to the inspector.OSHA citations fall into four categories:  (1) serious; (2) other-than-serious; (3) repeat; and (4) willful.  The penalties for these violations increased as of January 2, 2018.  The penalty for serious and other-than-serious violations is now $12,934 per violation, and the penalty for repeat and willful violations is now $129,934 per violation.  Penalties multiply for each day a violation continues to exist.

There was and continues to be much speculation as to the Trump administration’s position on OSHA regulations and enforcement.  President Trump has ordered an overall review of previous administration’s regulations and administrative orders.  The first year of the new administration has seen some rollback of regulations, modified interpretation of regulations, and extended deadlines for certain reporting requirements.  But, it is important to remember that OSHA inspectors continue to visit workplaces, including farms, and OSHA continues to bring enforcement actions.  It is safe to say that safety violations will continue to be a priority for OSHA.

© 2018 Agri-ViewMadison, WI.  Reprinted with permission.

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