How to defend against safety violation citations

Did you know that companies have the right to challenge/dispute an OSHA citation? Contesting an OSHA citation is difficult and takes time, money and effort.

So, how should employers decide whether to contest an OSHA citation? Consider the following factors:

1. How strong is OSHA’s case?

Can they prove

  • The cited standard applies to the work being carried out.
  • The employer failed to comply with the cited standard.
  • Workers were exposed to a hazardous condition.
  • The employer knew or could have known of the condition with the exercise of reasonable diligence.

Can you prove

  • Uncontrollable employee misconduct.
  • Unclear standards.
  • No hazard was posed by the violation or a greater hazard was created by complying.
  • Inability to comply.
  • OSHA officer did not follow proper inspection procedures or failed to issue a citation with reasonable promptness.

2. How big is the potential fine?

Consider the following range of possible penalties available under the OSH Act:

  • De minimus notice $0
  • Non-serious $0 – $7,000
  • Serious $1 – 7,000
  • Repeated $0 – $7,000
  • Willful $5,000 – $70,000
  • Failure to abate (fix the problem) $0 – $7,000 per day
  • Failure to post $0 – $7,000

There are formulas OSHA uses to calculate penalty amounts. Employers should understand these formulas and how they were used against them. Otherwise, and employer won’t be able to make an informed decision regarding the “fairness” of the penalty and whether to contest it.

3. How difficult/expensive is it to fix the problem?

A serious citation carrying a mere $500 penalty might no look like a big deal, but it could have a multi-million dollar impact if it involves making a significant changes to operations, processes or machinery.

4. Does it hurt the company’s image?

It is true that OSHA citations cost companies money but they can also cost them their reputation leading to potential losses in sales.

5. The Potential for Repeat Violations.

A repeat violation can carry a fine of up to $70,000…per violation! To establish a repeat violation under the OSH Act, it must be proven that:

  • The cited employer is the same one that was cited previously;
  • The previously cited employer was cited at least once before (and within three years of the time that the previous violation became a final order);
  • The earlier citation becam a final order of the Occupational Safety and Health Review Commission; and
  • The earlier citation was for a substantially similar violation

6. The Risk of Collateral Litigation

An OSHA citation, particularly a willful citation can often trigger all sorts of other legal actions to be taken by the parties involved. Third party lawsuits are very common and employers can face a multitude of direct and indirect costs to defenc from them, particularly where an incident has resulted in death or serious injury.

7. The Impact on Employee Morale

Maintaining a positive relationship with employees is a goal that should be shared by all employers. Contesting OSHA citations may have an adverse impact on these relationships. Employers must be aware of such impacts and govern themselves accordingly.

Summary of Key Points

  • Carefully consider the costs and possible consequences of contesting an OSHA citation before taking action.
  • Measure the strength of the case against you compared with your ability to defend yourself.
  • Consider the amount of the penalty imposed by the citation as tho whether it is appropriate/fair under the circumstances.
  • Account for the direct/indirect consts associated with correcting the problem.
  • Remember your company’s reputation is tarnished with OSHA citations.
  • Keep in mind that repeat violations typically deliver a much more serious blow to the pocket book.
  • An OSHA citation could touch off other, third party legal actions.
  • OSHA citations can have a negative effect on employee morale which in turn can affect production and quality amongst other things.

At SWMSC we provide concise, expert consultation on how to prevent OSHA citations before they happen. If you are cited we work with you to identify the best course of action, representing your best interests before OSHA.

Contact us today and ask us “HOW TO PREVENT/STOP OSHA CITATIONS.”

How to defend against safety violation citations

Employers are given the opportunity to challenge OSHA citations and investigations that may be improper. Under Section 8(a) of the Occupational Safety and Health Act, OSHA requires inspections to be conducted in a reasonable manner, at reasonable times, and conducted within reasonable limits. However, an employer may raise an affirmative defense against an inspection, claiming that the inspection was in violation of the ‘reasonable’ standard OSHA requires. An affirmative defense is a defense that allows the defending party to bring new facts and evidence in attempt to negate a claim against the employer. Here, an employer may bring evidence to prove that OSHA conducted an unreasonable inspection and show that OSHA failed to comply with its own Section 8(a) standard.

First, when collecting evidence, an employer must keep in mind the threshold for evidence in showing that an inspection was improper – i.e., the evidence must prove that the OSHA officer “substantially” failed to comply to Section 8(a). Therefore, evidence of misconduct is needed to raise the defense properly. For example, an employer may present proof that a compliance officer conducted the inspection for the sole purpose of harassing the employer to support their defense of improper inspection.

Second, when bringing this defense, employers must show actual prejudice or bias was imposed against them as a result of the inspection. A general claim that prejudice may not be enough in some circumstances. Rather, an employer should include facts as to why the inspection was prejudiced. For example, asserting that the inspection was prejudiced because the compliance officer failed to properly exercise their statutory duty under Section 8(a), may be enough to satisfy the ‘prejudice’ requirement.

To conclude, employers have options to defend themselves against unreasonable citations or inspections. When raising the affirmative defense of improper inspection, it is essential that the employer have sufficient evidence to support the defense. Also, the inspection must have a prejudicial component to be rendered improper. Ultimately, if this defense is raised properly, it will show that the OSHA officer failed to comply with the standards provided by Section 8(a) in the Occupational Safety and Health Act.

Nearly half of all employers cited by the Occupational Safety and Health Administration for Covid-19-related violations are appealing the charges, a rate that is five times higher than the average for all federal workplace safety citations.

As of April 15, employers had filed 172 appeals of virus citations with the Occupational Safety and Health Review Commission, the panel that hears challenges to OSHA citations, according to commission data. That represents about 42% of the 408 Covid-19 cases where OSHA said it cited workplaces from July 1, 2020 through April 12, 2021.

Typically, only about 8% of employers cited by OSHA have challenged the allegations by appealing to the review commission, prior-year data show. That trend has continued during the pandemic. Since July, when OSHA began issuing citations in Covid-19 inspections, only about 8% of employers cited for all types of violations—virus-related or otherwise—have contested the charges, according to OSHA data.

The sharp increase for virus citations reveals that many employers are motivated by a belief that their safety efforts complied with often-changing OSHA requirements, and some are concerned that not defending themselves against a citation could lead to civil lawsuits and damaged reputations, attorneys who often represent employers said.

“It’s been an extraordinarily difficult time for safety and health professionals and for human resources people around the country,” said Melissa Bailey , a shareholder with Ogletree Deakins in Washington, D.C. “Many of them justifiably feel they’ve done good work under very trying circumstances.”

Health Care Tops List

About 85% of the contested virus-related cases involve health-care facilities, according to OSHA enforcement data. That’s in line with OSHA’s decision at the start of the pandemic to focus most of its Covid-19 inspections on the health-care industry.

Food processing facilities such as meatpacking plants, where outbreaks have been common, represent about 5% of the appeals.

OSHA enforcement records through April 12 show the agency had issued citations for at least 1,150 violations related to Covid-19. About 80% involved alleged violations of OSHA respiratory protection rules, such as not conducting fit-testing of N95 respirator masks or not training workers to use them.

Another 17% were recordkeeping violations, such as not listing a work-related illness or death in logs OSHA requires employers to accurately complete. Less than 1% of the violations were for not following the general duty clause, a provision in the Occupational Safety and Health Act that requires employers to provide a workplace free of known and preventable deadly hazards.

The average proposed total fine for each cited employer was $12,891.

Civil Liability Concerns

Among the reasons for the high percentage of appeals is a concern that agreeing to a violation and paying the fine could leave an employer vulnerable to negligence or other tort claims, said Ed Foulke , a former review commission chairman and now a partner with Fisher & Phillips in Atlanta.

In most states, a worker can’t sue his or her employer for a work-related illness because costs would be covered by workers’ compensation insurance programs, Foulke said. But with Covid-19, few workers’ compensation claims are being approved by insurers.

A denial may enable a worker or their survivors to sue the employer, Foulke said, and a lawsuit against an employer could have more weight if the employee’s attorney can tell a court that the company didn’t challenge an OSHA Covid-19 citation.

Pinpointing Infections

James Sullivan , co-chair of Cozen O’Connor’s workplace safety practice in Washington, D.C., and a former commission chairman, said employers may want to challenge OSHA assertions about where employees were infected, because it’s often hard to prove where a person contracted the virus.

This could be an issue in cases where OSHA cited employers for not including Covid-19 illnesses or deaths in their OSHA-mandated records of on-the-job infections or for not quickly notifying the agency of a worker’s death or hospitalization when the virus was believed to have been contracted at work.

“The burden of proof is on OSHA to show that it is work-related,” Sullivan said.

If an employer performed “a good faith investigation” and couldn’t determine if an infection was work-related, Bailey said, the employer wouldn’t be required to record it and thus OSHA shouldn’t cite them for that decision.

Defending against potential damage to a company’s reputation may also be motivating employer appeals.

Companies don’t want to be seen as accepting OSHA’s conclusion that they violated federal rules for protecting workers against Covid-19, Sullivan said.

Even internally, a company’s reputation among its staff could be damaged by not defending its decisions and safety programs, Bailey said.

According to the review commission, 47 of the Covid-19 appeals have been set for a hearing before an administrative law judge. The outcome of those appeals could take months and in some cases years, Sullivan said.

Generally, an employer may first try to reach a settlement by negotiating with Department of Labor attorneys and regional OSHA officials, Sullivan noted.

If a settlement can’t be reached, the appeal would be decided by one of the commission’s administrative law judges. In turn, that decision could be considered by the review commission’s three members. If either side objects to the commission’s final order, it can be appealed to federal circuit courts.

To contact the reporter on this story: Bruce Rolfsen in Washington at [email protected]

To contact the editors responsible for this story: John Lauinger at [email protected]; Travis Tritten at [email protected]

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Accidents happen. Mistakes on the job happen. Forgetfulness and human error happen.

Unfortunately, none of this is an absolute defense to an Occupational Safety and Health Administration violation.

OSHA demands documented efforts for any defense to be considered.

Employers cited for violations of OSHA regulations often face huge penalties, including hefty fines, business loss, criminal charges, and greater future oversight.

Just this year, OSHA upped the maximum penalty for serious and other-than-serious violations to $13,260—and 10 times this amount for willful or repeat violations.

So is there any good news for employers?

An OSHA citation can sometimes be beaten or controlled where the incident does not involve bad faith, isn’t something particularly egregious, or the underlying act isn’t within the employer’s sole control.

For well-meaning employers, there are a number of affirmative defenses against OSHA citations.

Proper advanced planning, training, and legitimate procedures dramatically increase the chances of a successful defense and minimal fines.

Here are a few of the big defenses:

Employee Misconduct or ‘Isolated Incident’ Defense

Probably the most common defense, the employee misconduct or “isolated incident” defense, holds that an employer should not be punished for actions of employees who have been given all opportunities and resources necessary to fully comply with the law.

In order to establish this defense, an employer must show:

  • The violation results exclusively from the employee’s conduct
  • No supervisory personnel participated in, observed, or consented directly or implicitly to the violation
  • The employee’s conduct went against a well-established company policy or work rule in effect at the time of the violation

It also requires adequate records that prove these policies and programs were received by the offending employee or employees.

Employers must also establish that these policies and programs are enforced, for example, by frequent company work site inspections and well-documented discipline for violations.

Impossibility of Compliance

Another defense is impossibility of compliance, based on the assertion that compliance is impossible because of the nature of the employer’s work.

To successfully use this defense, an employer must prove compliance was functionally impossible or would preclude performance of required work.

One must also show alternative means of protection were either in use or unavailable.

For example, the Occupational Safety and Health Review Commission once accepted this defense from a contractor who did not install handrails on a stairway used by its employees.

The commission accepted the contractor’s argument that the handrails would make the stairs too narrow for the equipment the employees were carrying and would have been of little help since the employees had to use both hands to carry it.

Employers with this type of work should implement and train employees on a site-specific safety plan, recognizing this impossibility, and outlining the alternative safety procedures and protocol.

Producing this plan and documentation of its implementation is the only way OSHA will consider this defense.

Greater Hazard Defense

Similar to the impossibility of compliance defense, in the greater hazard defense an employer argues that compliance would have created a greater hazard than noncompliance.

To establish this defense, an employer must prove:

  • The hazards created by complying with the standard are greater than those of noncompliance
  • Other methods of protecting employees from the hazards are not available
  • A variance is not available

Employers can request a variance for many reasons, including not being able to fully comply on time with a new OSHA standard because of a shortage of personnel, materials, or equipment.

The second requirement is that a contractor actually seek a variance and raise the greater hazard defense in the variance proceeding before exposing its employees to the risk.

The OSHA review commission has held that failure to do so essentially nullifies this defense.

Key Takeaway

If employers learn anything from this article, it should be that preparation and documentation are keys for overcoming OSHA citations.

An employer who can provide documentation of the workplace safety policies created and the company’s good-faith efforts to ensure employees understand the policies and follow them is in a better position than the employer with no tangible evidence.

Remember: if it’s not on paper, in OSHA’s mind, it didn’t happen.

About the authors: Robert G. Brody is the founder and managing member of Brody and Associates, LLC, a Westport management-side labor, employment, and benefits law firm. Lindsay M. Rinehart is an associate with Brody and Associates, representing employers in labor and employment law matters.

The Occupational Safety and Health Administration (OSHA) is the federal agency responsible for overseeing workplace safety. The organization also enforces safety protocols and levies citations and fines for companies found in violation of one of the industry safety requirements.

Knowing what these violations are will help improve your safety compliance management and ensure your business is meeting all required safety protocols.

What Are OSHA Violations

An OSHA violation occurs when a company or employee willingly or unknowingly ignores potential and real safety hazards. A violation does not always mean an incident occurred; it can also be substantiated during the OSHA inspection process.

Depending on the severity of the infraction, the company can receive a citation or fine.

OSHA Violations vs. Citations

Some OSHA violations do not put employees at risk. Instead of issuing a fine, the agency gives the company a citation. Similar in function to a warning traffic ticket, a citation lets the business know there is a violation to resolve. It will also include a date when the safety issue needs to be resolved.

Only repeat OSHA citations are listed on a company’s safety record. It’s classified as a repeat offense when a business receives the same citation more than once in three years.

How to Look Up OSHA Violations

OSHA has made it easy for employees, managers, and business owners to look up the various types of violations. When you need to check the violations, OSHA has the complete list on its website.

How to defend against safety violation citations

Having regular safety audits and inspections performed by third-party safety consulting companies can help improve workplace safety and reduce the likelihood of OSHA violations and citations.

6 Types of OSHA Violations

There are 6 listed types of OSHA violations, each one carrying a different penalty.

1. Serious

When a business owner or manager knows there is a hazard that can result in injury or death and does not resolve it, OSHA considers this a serious violation. Fines are based on the seriousness of the violation and can reach up to $13,653 for each one.

It can be more cost-effective to have a workplace risk assessment consultant identify and resolve these hazards before OSHA applies a costly fine.

Gravity-based OSHA Penalties

Gravity-based penalties (GBP) are classified into three categories.

  1. High-gravity (serious) violation penalties are $13,653.
  2. Moderate-gravity (semi-serious) violation fines range from $7,802 – $11,703.
  3. A low-gravity (less serious) violation fine is $5,851 for each incurred penalty.

2. Other-Than-Serious

A violation that does not result in injury or death but does compromise an employee’s health or safety is considered other-than-serious-threat by OSHA. The maximum penalty for this type of violation is the same as a serious one. However, the Occupational Safety and Health Agency has the choice of issuing a citation or reducing the penalty amount by 95%.

Minimal-only Severity

Other-than-serious violations are divided into two classifications. Lesser minimal-only violations usually only come with a warning. The penalty is zero in financial terms. Greater minimal-only infractions have a broad range. Companies can face fines ranging from $1,000 – $13,653.

3. Willful or Repeated

When a violation is repeated within three years, companies will face stiffer penalties up to $136,532. Willful violations are the most serious. The violation occurs when the employer knows there’s a risk to employees and does nothing to resolve it.

Employee-count Reduction for Serious Willful OSHA Penalties

Willful and repeated safety violations put employees at risk. A serious willful penalty is reduced depending on the size of your workforce.

Number of Employees Percentage of Fine Reduced
10 or fewer 80
11-20 60
21-30 50
31-40 40
41-50 30
51-100 20
101-250 10
251 or more 0

4. Posting Requirements

Any employer that receives a citation or violation notice from OSHA must post it near the incident area. The post must be visible to all employees until the violation is resolved or for three days, whichever comes first.

5. Failure to Abate

The OSHA notice contains a date when the safety violation must be resolved. Companies that don’t meet this date are subject to the maximum penalty per day.

6. De Minimus Violation

An example of a De Minimus Violation is ladder safety. According to OSHA, a ladder having 13 inches between rungs instead of 12 inches isn’t technically compliant. A citation or notice isn’t always necessary, instead, OSHA may give a verbal warning. A note is made in your company’s safety file, but there aren’t always penalties.

Code enforcement, from condemning buildings to investigating poor plumbing, is adopted by communities to preserve the safety, cleanliness and property values of a municipality or other community. But when notices concerning your grass height become more of a nuisance than the grass itself, code enforcement becomes a pain for homeowners. Fighting code enforcement can be difficult and costly. Remember that once fees and expenses are added up, fighting a code enforcement violation can often be more expensive than simply acting in compliance.

Pick your Battles

Remember that some codes, such as building codes and grass height ordinances, are in place for a reason, and that reason is safety. Fighting a code violation can often be more costly and take more time than cutting the lawn. Look at the law. This means finding out which agency, usually your city or your homeowners’ association, is citing you as well as reviewing the law to determine if you are actually in violation. If you feel you’re being harassed for minor aesthetic violations, it’s time to take a stand.

You can usually fight code enforcement by requesting a hearing with your city or homeowners’ association. Strict time limits apply, so act quickly.

Contact the Code Enforcement Office

If you are not in violation of a law, contact your city or homeowners’ association code enforcement office. Often homeowners’ associations contract with a property management company for this purpose. Contact them multiple ways, first by phone as the problem may be cleared up easily with a conversation, and once by mail or email, so you have proof in writing. Request a second inspection of the violation and schedule it for a time you will be home so you can speak with the inspector.

Attend a Hearing

If a second inspection hasn’t cleared the violation, request a hearing with your city or homeowners’ association. There is often a time limit on hearing requests, usually between 10 and 60 days, so check local regulations and request a hearing as soon as possible. Bring evidence of compliance with local codes, including photos and any inspector’s notes, to the hearing. The code enforcement board will make a decision; if they find you still in violation, you will have to comply with the code to their satisfaction and/or pay the associated fine. Your next option will be to sue the homeowners’ association or city. Consult a lawyer who specializes in code violations about your case.

Responding to OSHA Citations and Construction Safety Violation Claims

An OSHA violation can expose your company to significant fines and abatement costs, and possibly delay your construction project or bring additional government scrutiny. The Texas construction lawyers at Andrews Myers, P.C.,provide knowledgeable advice and seasoned OSHA citation defense for compliance issues and administrative proceedings.

Based in Houston, our OSHA defense lawyers serve contractors and related businesses in coastal Texas and statewide. We advise and represent clients confronted with Occupational Safety and Health Administration (OSHA) citations and other enforcement actions arising from alleged violations of the Occupational Safety and Health Act. As active participants in industry trade association safety committees and other groups consulting on OSHA-industry association issues, members of our firm are in a unique position to understand how enforcement affects businesses in the construction industry.

Proactive Response for Compliance and Negotiation

If OSHA officials arrived at a work site and discovered health hazards or safety concerns, early intervention is critical. Our construction lawyers bring more than 20 years of experience with OSHA citations and administrative hearings. We work quickly to ascertain the potential liability and engage OSHA officials in informal negotiations to avoid the distraction and expense of formal proceedings. We can often resolve cases with proof of abatement measures to rectify the hazard and perhaps a minor fine.

If no resolution is possible, we can capably defend clients against the claim. We have handled OSHA citations involving scaffolding, excavation, harnesses and fall protection, hard hats and eye protection, tools and machinery, and failure to provide drinking water to construction workers, among many other work site issues.

Any time a death or serious injury occurs at a construction site, OSHA will soon show up and start interviewing people. Contact our team of knowledgeable lawyers in construction safety violation claims at Andrews Myers to protect your interests and limit the fallout.

In March 2016, OSHA conducted an inspection of the Thomson, Georgia facility of HP Pelzer Automotive Systems, Inc., an automobile parts manufacturer. Among the employees working at the facility were 300 temporary employees supplied by Sizemore, Inc., a staffing agency. On September 7, 2016, OSHA issued citations proposing penalties of $654,726 against HP Pelzer for various machine hazards. The same date, OSHA issued citations proposing penalties of $49,884.00 against Sizemore.

The dual citations against HP Pelzer and Sizemore are not unusual. Just this year, the following dual citations have also been issued by OSHA against both the host employer and the staffing agency supplying temporary employees:

July 15, 2016: Citations proposing penalties of $87,120 against Pyongsan America, Inc., an automobile parts manufacturer, and citations proposing penalties of $18,900 against Surge Staffing, LLC, a staffing agency, were issued for various machine hazards.

June 29, 2016: Citations proposing penalties of $3,426,900 against Sunfield, Inc., an automobile parts manufacturer, and penalties of $7,000 against each of three staffing agencies, Atrium Personnel, iforce and Employers Overload, were issued for various machine hazards.

June 24, 2016: Citations proposing penalties of $58,800 against Terrell Manufacturing Company, a woodworking manufacturer, and Citations proposing penalties of $4,800 against A.L. Staffing, a staffing agency, were issued for various machinery hazards.

February 2, 2016: Citations proposing penalties of $37,600 against Kinsey Corp., a construction contractor, and $7,000 against Gillmann Services, a staffing agency, were issued for trenching and excavation hazards.

Why Does a Safety Violation Affecting Temporary Workers Subject Both the Host Employer and Staffing Agency to a Citation?

The answer is that the OSH Act imposes a responsibility on each employer to protect the safety and health of employees subject to its direction and control, even if the employees are jointly employed by another employer. For host employers, this responsibility extends to temporary employees supplied by staffing agencies. For staffing agencies, this responsibility extends to temporary employees supplied to host employers.

What Violations are the Subject of Dual Citations by OSHA?

So, why are staffing agencies being cited for safety violations located at host employer work sites over which they may have no control? The answer is that the OSH Act imposes a responsibility on employers to protect their employees, regardless of where the employees work. As indicated in the Temporary Worker Initiative launched by OSHA on April 29, 2013, it is the responsibility of a temporary staffing agency to follow the OSH Act with respect to workers supplied to host employers.

So what violations are staffing agencies being cited for by OSHA? After all, it is the host employer, not the staffing agency, which generally controls the working conditions at its work site. For dual citations, one common violation is a failure of temporary employees to be trained for the tasks performed for the host employer. According to the Temporary Worker Initiative, it is typically the responsibility of a staffing agency to provide general safety training to its employees before sending them out on job assignments. For more specific safety training, the staffing agency must either (1) provide such safety training itself, or (2) ensure that such training is being provided by the host employer. If these responsibilities are not undertaken by the staffing agency, a citation may issue.

Where hazardous conditions exist at a host employer, a staffing agency may also be cited for the hazardous conditions themselves. According to the Temporary Worker Initiative, a staffing agency has duties of inquiry and verification with respect to the workplaces to which temporary workers are assigned. Specifically, the staffing agency has the duty to inquire and verify that the host employer has fulfilled its duties to provide a safe workplace. If these duties ae not fulfilled by a staffing agency, a citation may issue.

What Steps Should be Undertaken by Staffing Agencies In Response to OSHA’s Enforcement Efforts?

As a first step, no employee should be assigned by any staffing agency to any worksite without documented general safety training. General training may be different for office worksites, but should still be required and documented.

Secondly, before assigning any workers to a host employer, a staffing agency must become generally familiar with the OSHA standards applicable to the host employer’s industry. Only by becoming familiar with such OSHA standards can the staffing agency adequately fulfill its independent duties of inquiry and verification as to such standards with the host employer.

Finally, before assigning any workers to a host employer, a staffing agency must communicate with the host employer regarding (1) the working conditions which exist at the host employer’s worksite, (2) the duties which will be undertaken by temporary workers, (3) the hazards which may be encountered by the temporary workers, and (4) the procedures, including specific training, to be undertaken by both the staffing agency and/or the host employer to ensure compliance with applicable OSHA standards. As with all OSHA compliance efforts, communications with the host employer should be thoroughly documented.