OSHA Citation Defense Strategies

To establish an OSHA violation, the Occupational Safety and Health Administration through a “preponderance of the evidence.” In simple terms, this means that OSHA only needs to prove that the violation is more likely than not to have occurred. As part of this “proof,” OSHA must provide evidence on four elements. Each of these elements creates an opportunity for defense.

OSHA Citation Defense - Four Elements

1. Applicability of Cited Standard

2. Non-Compliance with Cited Standard

3. Risk to Employees

4. Employer Knowledge

Applicability of Cited Standard

• Does the cited standard apply? Sometimes OSHA compliance officers (CSHOs) get it wrong!

• Many OSHA standards have very specific statements on scope, application, and exemptions.

• Example: Did OSHA cite a General Industry (29 CFR 1910) standard when a more specific standard exists within the Construction (29 CFR 1926) regulations?

Non-Compliance with Cited Standard

• Once applicability of the cited standard is verified, did the employer actually fail to comply?

• What evidence—or lack of evidence—points towards non-compliance?

• Does additional evidence exist?

Risk to Employees

• Was there risk to employees?

• Did employees have access or proximity to the hazard (violative condition)?

• What was the actual or potential risk?

Employer Knowledge

To prove the last requirement, OSHA must show that the employer knew about the issue being cited in one of two ways:

1. The employer had actual, direct knowledge of the violation, or

2. The employer should have known about the problem with the exercise of reasonable diligence.

A qualified OSHA Consultant, or an OSHA attorney, can assist in evaluating arguments for a lack of employer knowledge.

OSHA Citation - Affirmative Defenses

Even if OSHA has proven the four necessary elements above, the employer still has a few more opportunities for defense. An affirmative defense is a claim that, if established by the employer, will excuse the employer from a citation. With affirmative defenses, the employer bears the burden of proof. Three common affirmative defenses are:

1. Employee Misconduct

2. Impossibility/Infeasibility of Compliance.

3. Greater Hazard

Employee Misconduct

To succeed in the affirmative defense of “Unpreventable Employee Misconduct—Isolated Incident,” the employer must show that it has:

1. Established a work rule adequate to prevent the violation.

2. Effectively communicated the rule to employees.

3. Established methods for discovering violations of work rules, and yet did not know about an isolated violation of the work rules.

4. Established effective enforcement of the rule when violations are discovered.

Impossibility/Infeasibility of Compliance

This defense requires the employer to show that:

1. Compliance is considered impossible or infeasible, and

2. The employer took reasonable alternative steps to protect employees or there are no alternative means of employee protection available.

Greater Hazard

A greater hazard defense requires the employer to show that:

1. Compliance with the standard would result in a greater hazard to employees than would non-compliance, and

2. The employer took reasonable alternative protective measures, or there are no alternative means of employee protection.

Your OSHA Citation Defense Partner

Navigating OSHA compliance, inspections, citations, and fines for violations can be an overwhelming experience.

If your company has already been inspected by OSHA, you only have 15 days after you’ve received the citations to respond, so don’t wait to get help!

After 15 days, the citations become final, and the employer is required to pay the entire proposed penalty and comply with OSHA’s requirements.

More about our OSHA Citation Assistance services.