Your OSHA Citation May Bar You From Working in Boston

In response to the October 2016 fatal trench collapse that claimed the lives of two Atlantic Drain Services employees, the Boston City Council passed an Ordinance authorizing municipal department heads to deny and/or revoke permits to anyone with “work safety histories or concerns.” Thus, if OSHA has issued citations to an employer within five (5) years prior to applying for (or working under) a permit, those citations can be relied upon to deny/revoke any permits. See City of Boston Municipal Code §16-A1.2.

This is very problematic for both OSHA and employers (who work in Boston). Given the general wording of the Ordinance, any citation, whether it is Willful, Repeat, Serious or even Other-Than-Serious could become the basis for barring an employer from working in Boston. OSHA and Boston-based employers will be unable to resolve their differences when anything short of complete citation withdrawal could decimate an employer’s business. The lack of specificity in the Ordinance also invites an abuse of discretion to subvert the free market bid process and undermine the ability of a developer to work with a contractor of their choosing. We can envision a scenario wherein the Ordinance causes a winning bidder to lose/disgorge a contract because of a minor glitch in their “work safety history” in favor of a more politically connected contractor who initially lost the bid.

Given the recent passage of the Ordinance, we are unaware of any data as to how the Ordinance is being applied – but beware, an Other-Than-Serious OSHA citation could have a significant impact on your ability to work in Boston. Feel free to contact me if you know how this Ordinance is having an effect on the marketplace.

About the Author: James F. Laboe 

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