OSHA citations are nothing to take lightly. Aside from what can be severe and sometimes devastating fines, the impact of an OSHA citation can have a far-reaching impact on an employer’s business. From costs of abatement and compliance, the risks of repeated or willful violations, and reputational harm to future litigation, contract losses, and possible oversight under the Severe Violator Enforcement Program (SVEP), the penalties posed by citations should prompt any employer to explore their ability to raise affirmative defenses.
While citations span the spectrum of regulatory violations, and though they may be resolved effectively through other means (such as contesting the classification), pursuing affirmative defenses is a worthwhile task. Whether you’re setting up affirmative defense documentation and compliance plans proactively, or responding to a citation that’s always been issued, knowing your options in important.
Examples of employer defenses to OSHA citations may include:
Employee Misconduct – Also referred to as an isolated occurrence or incident defense, defense strategies based on employee misconduct focus on the scope of an employer’s culpability for incidents caused by employees who have been provided ample opportunities and resources to ensure compliance. It is also among the most common defenses. Establishing an employee conduct defense requires an employer to show the following:
- The regulatory violation was a direct and exclusive result of an employee’s conduct;
- The employer / supervisors did not participate, observe, know, or content to the violation;
- The employee’s conduct violated internal company policies in place at the time of the violation.
Impossibility of Compliance – Though it may not be an available option in every case, there are times when compliance with a specific OSHA standard would be impossible, imprudent, or unsafe given the nature of the employer’s business and / or their working environment. This may be a viable defense when a roofing contractor cannot comply with conventional means when installing a roof of unique proportion, anchorage, and material. In situations such as these, employers will need to demonstrate how compliance under given conditions is functionally not possible (or a potential greater risk to employers). Employers should have site-specific compliance plans outlining alternative safety measures and means.
Equipment Not in Use – Employers may challenge citations when violations target equipment not in use. This would require an employer to show that steps were taken to remove a piece of equipment, and clearly mark it as inoperable or out of order. It may also apply to equipment or tools that, although observed in an OSHA inspection, were inoperable and being repaired.
No Risk to Employee – OSHA has the burden of proving that any alleged violations they cite pose immediate or direct danger to workers. In cases where such as defense is possible, providing the documentation or arguments, even at an informal conference at the contest stage, can produce a favorable resolution.
Not in Scope of Employment – OSHA oversees workplace safety, but if incidents arose outside the scope of employment, employers may have the option to raise a defense. This would additionally require documentation regarding the duties of personnel, as well as compliance plans and policies that may address or explicitly prohibit the specific type of conduct leading to the incident.
Proactive & Responsive OSHA Defense
As mentioned in a previous blog, documentation is critical to defending against citations. Though documentation to be provided will depend on the nature of the violation, some examples of documentation to provide when raising an affirmative defense include:
- Sound compliance plans that show the written policies employers allege were violated by a worker
- Thoroughly documented training programs, employee attendance records, and proof of risk-mitigating measures such as language translation or one-on-one training
- Records of site inspections, audits, and their frequency
- Enforcement actions, including disciplinary action against a specific employee implicated in an incident or other employees related to the same violation
- Documentation of management and supervisory roles
- Catastrophe management policies
- Job hazard assessments
Questions About OSHA Compliance or Citations? Call (713) 489-2028
Hendershot, Cannon & Hisey, P.C. has extensive experience counseling businesses throughout Texas and beyond in a range of OSHA compliance matters – from the creation and implementation of compliance plans to immediate response and defense strategies. If you have questions about our services, contact us online or call (713) 489-2028 to request a consultation.