In recent years, the Occupational Safety and Health Administration (OSHA) has become increasingly more assertive. This has resulted in more OSHA inspections, implementation of the Severe Violator Enforcement Program (SVEP), and increased civil penalty amounts. It has also created a greater need for employers to re-evaluate their policies and procedures – both in terms of proactive measures that can prevent enforcement action and how they respond to OSHA citations.
OSHA citations are high stakes matters for employers, precisely because they create exposure to what can be severe and substantial penalties. At Hendershot Cowart P.C., our ability to take a comprehensive, hands-on approach to helping clients address matters of OSHA regulatory compliance and OSHA citation defense is driven by our insight and experience in OSHA law and how the inspection and citation process unfolds. Over the years, this insight has proven invaluable to employers throughout Texas and the U.S., including those who have utilized our firm’s experience to assist them in both proactive and responsive efforts.
Whether it is helping employers create comprehensive compliance plans to minimize risks of receiving a citation or defending them against citations and exploring their options for resolution, careful consideration of OSHA citation classifications can serve as a guide for developing the most appropriate and target strategies. On this blog, we discuss OSHA citation classifications, and discuss their importance to proactive and responsive efforts.
How OSHA Classifies Violations
OSHA classifies violations by severity. These include:
- de minimis – A di minimis violation is the least severe classification, and is issued for technical OSHA violations that do not impact the health or safety of employees.
- Other-than-Serious – These violations directly affect health and safety in the workplace, but are considered generally unlikely to result in employees suffering harm.
- Serious – Serious violations are issued when there are workplace hazards employers knew or should have known about that create substantial risks for worker injury or death.
- Willful – Willful violations are among the most serious classification, and are issued to employers that knowingly violate OSHA standards, knew about hazardous conditions in the workplace, and failed to take steps to address them.
- Repeated – OSHA classifies violations as repeated when employers have previously been cited for the same of similar violation within the past five years.
- Failure to Abate – Citations require employers to address and fix violations by a certain date. Failure to do so is classified as a failure to abate violation, and can result in the assessment of daily fines each day beyond the abatement date.
The severity of OSHA citations directly correspond to the penalties imposed. This includes not only civil monetary fines, but also the potential for greater oversight under OSHA’s Severe Violator Enforcement Program (SVEP), elevated penalties for any future or repeat violations, expenses for abatement of workplace hazards, future risks of liability (i.e. civil personal injury lawsuits, related regulatory action, etc.), and the potential for reputational harm and contract losses.
Citation Classifications & Compliance Plans
A sound compliance plan entails far more than simply owning an OSHA guidebook. It requires thoughtful, targeted, and insight-driven strategies that help employers ensure regulatory compliance and reduce risks on an active and ongoing basis.
As part of helping employers draft and implement tailored compliance plans, our legal team stresses the importance of understanding OSHA classifications, as they can help create a broader understanding of how to best approach and structure a compliance program. Examples of how classification consideration can help facilitate a proactive and risk-mitigating approach include:
- Determination of where exposure to violations exists within a certain company or industry, allowing for more tailored policies and procedures
- Assessment of risks related to the most serious violations
- Prioritization of high risk workplace conditions or areas within a company
- Identifying systemic risks or problems with current company policies or infrastructure
- Created and application of self-auditing techniques and policies, especially as they relate to high risk areas within a company.
- Creation of policies and procedures for handling accidents, identified hazards, and catastrophes with a focus on risk-reduction and high risk violations
- Creation of policies to protect workers on an active, consistent basis
By evaluating which citations classifications pose the greatest threats to employers, we help clients prioritize their unique needs in terms of protecting workers, reducing risks, and creating executable, active plans. Although plans should be comprehensive in scope, the need for additional focus is often crucial to addressing any high risk areas and concerns, and minimizing the risks of violations that can potentially result in citations with elevated classifications.
Citation Classifications & Responsive Strategies
When OSHA inspections result in actual citations, the stakes are elevated. An immediate response is critical to dealing with the citation, OSHA officials, and requirements, and to developing strategies for pursuing the best possible resolution. Again, evaluation of citation classifications is of critical importance to driving defense efforts. Examples include:
- Evaluating whether to contest a citation – Evaluating whether to contest a citation should include careful consideration of the classification and the requirements that must be met by OSHA. This can include assessments of the strength of a citation in regard to the standards outlined by the classification (i.e. did an employer “willfully” violate an OSHA rule, does the alleged hazard objectively pose risks to worker safety, is a new violation actually to same or similar to a previous violation, etc.), as well as assessments of the potential fines.
- Contesting the classification itself – While OSHA citations can be contested on their merits or any individual facts, contesting the classification itself is often an effective approach to securing the most favorable outcome. As we have discussed, contesting citation classifications may involve a number of approaches that depend on how OSHA initially classifies a violation and the options for reclassifying them to a lower violation, which in turn can help in the reduction of fines and other adverse consequences.
- Prioritizing citations – Employers may be issued one or any number of citations following an OSHA inspection, which is why evaluations of their classification can help in prioritizing the most serious needs of employers when it comes to responding and complying. For example, this may include immediate abatement of cited hazards in order to avoid additional citations for failure to abate, the creation of strategies to contest certain classifications (such as the most serious or potentially harmful to a business) while complying with others, and exploring options for good faith negotiations to reduce certain classifications, fines, and related penalties.
- Tailoring response / compliance efforts – While citations of any classification require a response, evaluating classifications can help tailor that response. This includes prioritizing the most pressing issues, evaluating whether to contest a citation or classification, and exploring options for reducing risks, costs, and penalties. It can also help establish goals and objectives, and guide any necessary steps for dealing with citations and what’s required, which may include independent investigations, evidence preservation, document gathering, addressing hazards and potential hazards, and identifying any issues with current compliance plans.
COVID-19 Update: While OSHA is continually updating guidance and regulations regarding the coronavirus pandemic, employers must remember that they have obligations to ensure safe workplaces, and to comply with recordkeeping and reporting requirements.
As OSHA has prioritized its response to COVID-19 in the workplace, employers should be aware they face risks of violations should employees contract the virus. While every case is different, these citations may be classified as “serious” or “other than serious” – or even willful or repeated in some circumstances.
Reducing the severity of these classifications, especially if there are multiple violations associated with more than one employee contracting the virus, or an outbreak, can be crucial to reducing potential penalties and fines. Hendershot Cowart P.C. is actively tracking OSHA’s response to COVID-19 and its impact on employers. If you have questions about OSHA compliance, contact us to request a consultation.
Hendershot Cowart P.C.: Proven OSHA Attorneys
There is no question that OSHA citations are time-sensitive and high stakes matters. However, they also require thorough and thoughtful responses and carefully constructed plans in order to address and prevent. At Hendershot Cowart P.C., our award-winning team has demonstrated the ability to help clients in a range of industries throughout the nation deal with OSHA regulations and citations through experienced proactive counsel and proven responsive representation. We’re readily available to help you learn more about citation classifications and how we can be of assistance with your particular OSHA matter.
Call (713) 489-2028 or contact us online to speak with an OSHA attorney.