Common Defense Strategies for OSHA Citations
Avoiding Serious Repercussions Following Alleged Violations
From collateral costs and considerable fines to reputational harm and exposure
to civil liability, OSHA violations pack consequences that can threaten
a company’s future.
If your business has been cited for violating an OSHA standard or is subject
to an OSHA inspection, seeking the best possible outcome will require
a carefully planned and deployed defense.
At Hendershot Cowart P.C., our OSHA law team has decades of experience
defending clients against OSHA enforcement actions. We are available to
discuss your situation, available defenses, and how we can help you proceed.
Contact us to speak with a lawyer – call (713) 489-2028 or contact us online.
A Tailored Approach to Defending Against OSHA Citations
OSHA citations are fact-specific matters that require defense strategies
tailored to the circumstances at hand. Although every workplace and employer
are different, you may be able to raise one of the following affirmative defenses:
1. Employee Misconduct
Also referred to as an isolated occurrence or incident defense, an employee
misconduct defense focuses on the scope of an employer’s culpability
for incidents caused by workers who have been provided ample opportunities
and resources to ensure compliance. It is among the most common defenses.
Establishing an employee misconduct defense requires an employer to show
- The regulatory violation was a direct and exclusive result of an employee’s conduct;
- The employer / supervisors did not participate in, observe, or know about
- The employee’s conduct violated internal company policies in place
at the time of the violation.
2. Impossibility of Compliance
Though not always the 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, for example, when a roofing contractor cannot
comply with conventional means of roof installation given a project’s
unique proportion, anchorage, and material.
In arguing the impossibility of compliance, 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.
3. 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.
4. No Risk to Employee
OSHA has the burden of proving that alleged violations pose immediate or
direct dangers to workers.
In cases where such as defense is possible, providing documentation or
arguments that no such risk existed, even at an informal conference at
the contest stage, could produce a favorable resolution.
5. Not in Scope of Employment
OSHA oversees workplace safety, so if incidents arise outside the scope
of employment, employers may have the option to raise a defense.
This would require employers to produce documentation and evidence regarding
the duties of personnel and any compliance plans and policies that address
or explicitly prohibit the specific type of conduct which led to the incident.
6. Multi-Employer Worksite
If there are multiple employers on a job site, is it possible that the
wrong employer was cited due to confusion about the role of each contractor
at a job site? If an employer can show that it neither created nor exposed
employees to the cited hazard, that employer may be able to invalidate
The first step is defining the role of each employer on a worksite. OSHA’s
Multi-Employer Worksite Policy defines four categories: the creating, exposing, correcting, and controlling
employer. Simply stated, the creating employer created the hazard, the
exposing employer exposed their employees to the hazard, the correcting
employer had responsibility for identifying and correcting the hazard,
and the controlling employer hold general supervisory authority over the
worksite. An employer may fall into one or more – or none –
of these roles.
Once employer roles are defined, step two is to determine the duties and
obligations of each employer and whether they failed to meet those obligations.
Both steps present opportunities to challenge OSHA’s interpretation
of the roles and actions of an employer in relation to the cited hazard.
Multi-employer sites are not restricted to the construction industry but
may include any worksite at which two or more entities are working on
a common project.
A Comprehensive Approach to OSHA Compliance
Effective handling of an OSHA citation involves more than raising an affirmative
defense. It requires a comprehensive approach to compliance that focuses
on both timely interventions and preventative measures.
Some of the most important steps employers can take when facing any OSHA
enforcement action include:
Acting immediately to enlist counsel, conduct independent investigations, and preserve evidence
for use in negotiations, hearings, informal settlement conference, or
Collecting and preparing documentation, including
essential documents like compliance plans,
training programs, employee attendance records, proof of risk-mitigating measures such as
language translation or one-on-one training, site inspection / enforcement records,
catastrophe management policies, and
job hazard assessments.
Deploying immediate interventions to define the scope of inspections and abatement requirements, implement
corrective action, and mitigate costs and time consumption.
Contesting the classification of the citation rather than the fine, especially in cases involving serious, willful,
and repeat violations that enhance penalties or increase exposure to significant
liability in the future, including the
Severe Violator Enforcement Program (SVEP).
Auditing current compliance programs and refining processes to address areas at issue, establish good faith
with regulators, and reduce risks of future violations.
Hendershot Cowart 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.