Employer Defenses to OSHA Citations

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, if not more so.  While the OSHA informal conference is a good place to state your case, with a little pre-planning and proper documentation, you can often get a citation removed entirely.  The following is a breakdown of legally recognized defenses which should be considered when conducting training and pre-planning for specific jobs.

The objective of this article is to ensure business owners and safety directors gain an awareness of different OSHA recognized defenses which may be available to them as a result of an OSHA citation.

Employee Misconduct

Employee misconduct is the most common, and likely most important, of defense options an employer may have at his or her disposal.  This option has also been referred to as the isolated occurrence or incident defense, and it’s based on the concept that an employer should not be punished for the activities of theirs employees when said employees have been given all opportunities and resources to comply with the law. 

In order to establish this defense, an employer must prove and demonstrate the following criteria has been met.  (A)  The violation charged results exclusively from the employee’s conduct.  (B)  The violation was not participated in, observed by, or performed with the knowledge and/or consent of any supervisory personnel.  (This includes your designated competent person.)  (C)  That the employees’ conduct went against a well established company policy or work rule which was in effect at the time of citation. 

Necessary documents to support this defense would include written policies and programs.  This could include the company’s safety manual, employee handbook and/or site specific documentation in which you can prove that the employee identified as the offender has received this information.  Documented training on work rules, policies, and programs must also be available and must also reflect that the offending employee had attended the training sessions.  This training must also be in a language the employee can understand, so it’s often a good idea to provide a translator for all non-English personnel and document the training had been translated on the corresponding sign in sheet.   A company also must establish that these written rules and policies are enforced.  Typically this can be demonstrated by site inspections, conducted on a frequent basis, as well as any and all disciplinary action which has been taken in the past for any current of former employee for unsafe acts or activities.

The Impossibility of Compliance Defense

Another defense which has been brought forth by employers with some level of success is the “impossibility of compliance defense”.  This argument is based on the assumption that compliance with the standard was made impossible because of the nature of the specific work.  An example of this is the handrail requirements for stair systems that have four or more risers.  In one circumstance, OSHA attempted to issue a citation to a contractor during the drywall stage of construction.  In order for the trade personnel to complete their work, the temporary handrail that had been installed was removed.  This, in turn, was explained to the OSHA area director during the informal process and the citation was deleted as a result.  For the roofing trade, this defense may be used in a situation where the roofers are working on a gypsum deck, domed roof.  This scenario would not allow for conventional means due to the gypsum strength and the anchorage available to roofing contractors.  Therefore, a site specific safety plan outlining the alternative means could be produced, trained on and implemented to ensure a defendable position with OSHA.  Remember, in order to use this defense, you must be able to prove that compliance with the standard was functionally impossible or would preclude performance of required work and alternative means of employee protection is either unavailable or in use.  A Site Specific Safety Plan outlining alternative measures is always recommended for this defense.

The Employer Had No Exposure or Equipment Was Not In Use Defense

The final defense outlined is one in which the cited equipment was not in use or there were no demonstrable hazards to the personnel for the proposed violation.  Examples of the equipment defense could include a ladder with damage that had been taken out of service and marked as such.  OSHA shouldn’t cite for the ladder unless it was observed in use.  Also, if an inoperable tool was observed during the OSHA walkthrough, and it was in the process of being repaired, this, too, would also be an un-citable condition per the defenses allowed.  One of the greatest tools safety professionals and company management may have is if they can prove their employees were not exposed to a hazard based on the citation issued.  OSHA must prove that the violation is a direct and immediate danger to personnel, and the burden of proof rests solely on them.  If OSHA cannot prove a hazard exists, it is likely the citation can be vacated through the informal conference or contest stage.

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’re unprepared or if you’re lacking certain documentation.  If you need help with any of these items, or other safety related issues, please feel free to call Safety Resources Inc. at 1-800-641-5990 or e-mail Matt McCreery at mmccreery@safetyresources.com.