OSHA Citation Defense Strategies
Introduction
To establish an OSHA violation, the Occupational Safety and Health Administration (OSHA) must prove the violation occurred based on a “preponderance of the evidence”. In simple terms, OSHA only needs to show that the violation is more likely than not to have happened. As part of this proof, OSHA must provide evidence for four key elements. Each of these elements offers an opportunity for defense.
OSHA Citation Defense – Four Key Elements
1. 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. For example, did OSHA cite a General Industry (29 CFR 1910) standard when a more specific standard exists within the Construction (29 CFR 1926) regulations?
2. Non-Compliance with Cited Standard
Once applicability of the cited standard is verified, did the employer actually fail to comply?
The key question here is: What evidence—or lack of evidence—points towards non-compliance? Does additional evidence exist that could help the defense?
3. Risk to Employees
Was there an actual or potential risk to employees?
Did employees have access or proximity to the hazard (violative condition)? What was the actual or potential risk involved?
4. Employer Knowledge
To prove the last requirement, OSHA must show that the employer knew about the issue being cited in one of two ways:
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The employer had actual, direct knowledge of the violation, or
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The employer should have known about the problem through reasonable diligence.
A qualified OSHA consultant or OSHA attorney can assist in evaluating arguments for a lack of employer knowledge.
OSHA Citation – Affirmative Defenses
Even if OSHA proves the four necessary elements above, employers still have several opportunities for defense. An affirmative defense is a claim that, if established by the employer, will excuse the employer from the citation. With affirmative defenses, the employer bears the burden of proof.
Three Common Affirmative Defenses:
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Employee Misconduct
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Impossibility/Infeasibility of Compliance
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Greater Hazard
1. Employee Misconduct
To succeed in the affirmative defense of “Unpreventable Employee Misconduct—Isolated Incident”, the employer must show that it has:
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Established a work rule adequate to prevent the violation.
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Effectively communicated the rule to employees.
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Established methods for discovering violations of work rules, and yet did not know about an isolated violation of the work rules.
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Established effective enforcement of the rule when violations are discovered.
2. Impossibility/Infeasibility of Compliance
This defense requires the employer to show that:
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Compliance is considered impossible or infeasible, and
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The employer took reasonable alternative steps to protect employees or there are no alternative means of employee protection available.
3. Greater Hazard
A greater hazard defense requires the employer to show that:
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Compliance with the standard would result in a greater hazard to employees than would non-compliance, and
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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 have only 15 days after receiving 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.
For a more comprehensive understanding of OSHA compliance and legal strategies, explore our pillar article on OSHA Compliance & Legal Strategies for Workplace Safety. This guide outlines expert strategies and essential actions for defending against OSHA citations and maintaining compliance.
Conclusion
Facing an OSHA citation doesn’t have to be overwhelming. By understanding the four key elements of an OSHA violation and the affirmative defenses available, you can craft a solid defense strategy. Working with an expert OSHA consultant or attorney can help ensure that you navigate the complexities of OSHA citations with confidence.
If your company is dealing with OSHA citations or needs expert help with OSHA compliance, contact LegacyMark Safety Consulting today for specialized guidance and support.
📞 Need help with OSHA citation defense? Contact LegacyMark Safety Consulting today.
