OSHA – Know the Legal Facts

As an Employer, you are required to keep your employees safe and hold your facilities in compliance with the Occupational Safety and Health Administration (“OSHA”). If your job site or facility is inspected by OSHA, and the inspector indicates there are workplace safety violations, you need to be prepared, understand your employment rights under OSHA, and act quickly. Failure to address an OSHA citation can lead to increased fines, with few rights and remedies to fight.

This blog outlines what you, as the employer, should expect and what proactive steps you can take to address OSHA inspections and OSHA violations.

What to Expect After an OSHA Inspection?

OSHA has six months to issue a citation. 29 U.S.C. § 658(c). Once a site inspection is performed, the inspector must file a report with the OSHA area director. The Area Director is responsible for reviewing the alleged violations, assessing the severity of the violations, and determining if you are a repeat offender. We will discuss repeat offenses in more detail, but our goal is to ensure that employers avoid the financial hardship imposed by repeat violations. Once the Area Director has made determinations, a citation may be issued to the employer via U.S Mail.

Immediate Action Items Following an OSHA Inspection

The primary purpose of the Occupational Health and Safety Act (“Act”) is to encourage workplace safety. OSHA will take employers’ attempts to comply in good faith into strong consideration when determining whether it cites a violation or whether it will reduce the monetary fines issued under a citation. As an employer, you will be well served to take immediate action to correct any alleged violations during the inspection. Make sure all actions are documented and kept on record because they will show proof of abatement. With proof of abatement, when OSHA issues the citation, you can show the good-faith efforts you have taken to correct the cited issues without forcing OSHA to intervene.

For example, if your facility was observed with obvious accumulations of sawdust and other combustible materials, you should communicate with your facility manager or foreman regarding the need to conduct regular sweeping and cleaning in compliance with OSHA standards for sawdust accumulation. To document your abatements, you could send an e-mail or memo, hold a safety meeting with written material that each employee signs off on, or prepare signage to be hung around the cited areas. These good faith efforts may be viewed as favorable by OSHA.

Many times, OSHA may develop multiple citations, for various infractions of the employer. The faster you act, the better your chances of reducing or eliminating any OSHA citations.

What to Do Once a Citation is received

Once a citation is received, you have three choices:

1. Pay the citation without contest;
2. Contest the citation and proceed to an informal conference; or
3. Contest the citation.

As the employer, you have a short, fifteen (15) business day deadline to respond to the citation once it is received. 29 U.S.C. § 659. If you fail to respond, the citation is entered as a final order and leaves you with limited options to contest the citation.

The first option provided above precludes further action by the employer. If you feel this is the best option for your company, be aware that any violations that are not properly remedied may be considered repeat violations if OSHA observes similar safety violations in the future. Paying the fine is not the same as abating a violation.

An informal conference is an ideal strategy because it shows a good faith effort on the part of the employer to meet OSHA standards and ensure the safety of all employees. At an informal conference, an employer may negotiate for an informal settlement agreement, necessary corrective action, proposed abatement dates, etc. You may also negotiate a fine reduction based on a variety of criteria provided by OSHA.

The final option allows the employer to dispute their liability for any alleged violation. You can contest every violation or certain violations when cited by OSHA. When contesting violations, the Occupational Safety & Health Review Commission will serve as the adjudicatory body for the dispute. 

Key Action Items

After you receive an OSHA citation, you should immediately contact an attorney or the OSHA Area Director. An informal conference can be immediately requested to discuss the citation and does not prevent a contest of the citation. Keep in mind, requesting an informal conference will not toll or extend the fifteen (15) business day deadline to contest.

If the informal conference fails to meet your expectations, you need to send a Notice of Contest to the OSHA Area Director via U.S. mail within fifteen (15) business days of receiving the citation.  The Notice of Contest may be as simple as the following form language:

Re: NOTICE OF CONTEST
Company: Employer
Issuance Date:
Inspection Number:

Dear Area Director:

This is a Notice of Contest of the above citation and all subparts, inclusive of all penalties for the citation.

Sincerely,

Employer

If no Notice of Contest is filed by an employer or filed after the expiration of the fifteen (15) business day period, the citation and the assessment of a penalty, will be deemed a final order and not subject to review by any court or agency.  29 U.S.C. § 659.

Conclusion

As an employer, facing an OSHA citation can be intimidating but it is important to know the procedures of contesting such a citation to avoid serious consequences, such as astronomical fines.

If you are an employer facing an OSHA citation, we are able to assist you with all your legal needs in handling the procedural process of contesting OSHA.

Jacob Oldaker is a member of Gross McGinley’s Business, Estate and Municipal practice groups. A former college athlete, Jake majored in Sports Administration and has a special interest in sports law.