By: Matt McCreery
As important as the Informal Conference can be for employers dealing with OSHA citations, setting your company up with affirmative defense documentation can be just as helpful or more. While the OSHA informal conference is a good place to state your case, with a little pre-planning and proper documentation often you can get a citation removed entirely. The following legally-recognized defenses should be considered when conducting training and pre-planning for specific jobs.
- Employees Misconduct
- The violation charged resulted exclusively form the employee’s conduct.
- The violation was not participated in, observed by, or performed with the knowledge and/or consent of any supervisory personnel
- That the employees conduct went against a well established company policy or work rule which was in effect at the time of citation.
- Policies & Programs
- Documented training on work rules, policies, and programs
- Enforcement of work rules and policies
- Site inspections
- Previous disciplinary action
- The impossibility of compliance defense
- Compliance with the standard was functionally impossible or would preclude performance of required work.
- Alternative means of employee protection are unavailable or in use.
- Site Specific Safety Plan’s outlining alternative measures are recommended.
- Greater hazard in compliance
- The hazards of compliance are greater than the hazards of non-compliance.
- Alternative means of protecting employees are unavailable.
- A variance application would be inappropriate.
- Cited equipment not in us
- Examples of vacated citations
- Ladder with a broken side rail that had been taken out of service
- Inoperable tool in the process of being repaired
- No hazard
- OSHA must prove that the violation is a direct and immediate danger to personnel.
- If OSHA cannot prove that a hazard exists it is likely the citation can be vacated.
The items above are just a snapshot of affirmative employer defenses against OSHA citations. The realm of OSHA citations can be challenging and frustrating if you are not prepared or if you’re lacking certain documentation. If you need help with any of these items or other safety related issue please feel free to call Safety Resources Inc. at 1-800-641-5990.