OSHA Citations - Top 10 for 2017
How to Defend Against Safety Violation Citations
The Occupational Safety & Health Administration (OSHA) is a federal agency that makes and enforces regulations to implement the Occupational Safety and Health Act and other related federal laws.OSHA officers conduct inspections and investigations to ensure all businesses are in compliance with the applicable safety standards. If your business is cited for violating an OSHA safety standard, you have 15 working days to file a written objection to the citation. You can defend against a safety violation citation by proving one of the recognized and accepted excuses for failing to meet the standard.
Claiming Employee Misconduct
Show an existing policy adequate to prevent the violation.Your company must have a safety policy in place that specifically applies to the OSHA standard you were cited for violating.
- For example, if the safety standard is addressed in your employee handbook, a copy of that handbook would serve as evidence that the policy was in place.
- You also should have some evidence that the policy was put in place before the incident occurred that gave rise to the citation – in other words, before the OSHA agent observed the conduct.
- Consider creating a safety committee among employees, or hiring a professional safety director to be in charge of ensuring compliance with OSHA safety standards.
Prove the rule was communicated to all employees.Typically your workplace safety rules and policies should be included a written manual distributed to all employees.
- Records of any safety training courses you offered to employees also serve as evidence that all employees were aware of the safety standards, if the standard you were charged with violating was included in the training.
- Make sure you take attendance or have employees sign in when they complete a training course so you have evidence of who participated.
- You also can communicate information about rules and safety standards by posting signs in the workplace. For example, if an employee was seen not wearing safety goggles, evidence that the employee had to walk through a door with a sign that said "goggles must be worn beyond this point" would support your claim that the violation was an isolated incident of employee misconduct.
Demonstrate your company has methods in place for discovering violations.Supervisor rotation schedules and internal inspection checklists can show OSHA the violation would have been discovered in due course.
- A defense of employee misconduct also may relate to the direct supervisor in charge of observing and reporting violations of safety standards.
- Because the employee misconduct defense is closely tied to the employer's knowledge of the conduct, you typically also must show that you were unaware the violation was taking place.
- Regular equipment checks and employee testing also are methods for discovering safety violations.
- Consider hiring a third-party safety consultant to train and monitor employees.
Provide a record of consistent enforcement of the rule.If there is evidence that exceptions were made or that employees weren't disciplined for violating the rule, you will be unlikely to prevail using an employee misconduct defense.
- If your employee misconduct defense focuses on the misconduct of a supervisor, any inconsistency in enforcing your rules should be connected to that supervisor in particular. For example, you might have one supervisor who routinely allows employees to work without the safety goggles required by OSHA.
- Consistent enforcement plays into your lack of knowledge of the violation, implying that if you'd known about the violation you would have disciplined the employees responsible.
- The disciplinary sanctions for violating safety rules and standards should be included in your written policy and followed without exception. Along with discipline for violations, you also might consider an incentive program for employees who consistently follow safety standards.
- Consistent enforcement also demonstrates that the employee's misconduct occurred without the knowledge or consent of any managers or supervisors.
- Keep in mind that policies and rules that aren't enforced consistently are no better than having no safety rules at all. Your employees won't take the rules seriously if there are no consequences for violating them.
Arguing Compliance Isn't Feasible
Acknowledge an understanding of the regulation and its purpose.You cannot claim it was infeasible or impossible for you to comply with the regulation unless you know the regulation and the harm it is supposed to prevent.
- You must demonstrate that you have recognized and evaluated the particular hazard associated with the standard you've been cited with violating.
Demonstrate an attempt to comply with the rule.Any evidence of efforts your business made to comply with the standard or regulation supports your argument that compliance wasn't feasible.
- It isn't enough to try only once – typically you must show that you made multiple attempts to comply with the standard and all were unsuccessful.
- Attempts to comply also must be ongoing. Generally you must demonstrate to OSHA that your employees' safety is paramount and that you have diligently attempted to comply with the rule and found it impossible to do so and still complete the particular work or project.
Provide documentation of the hardships that would result from compliance.A hardship typically means that the job cannot be completed otherwise. OSHA does not consider any amount financial hardship to your company to justify non-compliance with safety standards.
- However, keep in mind that it's not enough simply to say that compliance with the OSHA standard would be expensive, or would require you to change your methods of production.
Show that you took alternate steps to protect employees.Even if the particular standard proved impossible to implement, it helps your case to show other efforts you made to fulfill the same purpose.
- Because you essentially must argue that whatever work must be completed cannot be done at all if you complied with OSHA's safety standard, this defense is exceedingly difficult to prove.OSHA agents test standards in many contexts before regulations are issued, and to prove compliance is impossible for your company may require you to distinguish your work from that being done in similar businesses that have managed to comply with the standard.
- Additionally, rapid advances in technology require that your search for reasonable alternatives be continual.Spending a few months searching for an alternative and not finding one won't get you off the hook a year later.
Claiming Compliance Creates a Greater Hazard
Prove your attempt at compliance.You cannot know that compliance with the standard would create a greater hazard to your employees than violation of the standard unless you've tried to implement it.
- Witness testimony, such as statements from supervisors or employees, may be necessary to show an attempt at compliance.
- Showing your attempts to comply with the safety standards indicates that you care about your employees' safety. Even if you don't succeed in your defense and are still cited for the violation, this can keep OSHA from regarding your failure to comply as willful – meaning that you acted intentionally with indifference to the requirements or to the safety of your employees.
Demonstrate the hazard caused by compliance.To effectively claim this defense you must be able to show OSHA that if you complied with the standard your employees would be in greater danger as a result.
- Typically you also must be able to prove that the hazard was caused by adherence to the standard, rather than by an employee's particular habit or work practice that could be corrected.
- Even if compliance does create a greater hazard than non-compliance, your defense isn't likely to succeed if that hazard can somehow be controlled.
Indicate any alternative measures you took to protect employees.If you haven't attempted any alternative measures, you must prove that there are no possible alternative means to protect employees against the same hazard.
- Much like showing that you attempted to comply with the safety standard, trying other ways to achieve the same result demonstrates that you care about your employees' safety and aren't intentionally ignoring the issue.
- At the same time, you should exercise caution when using your own methods or judgment in place of the practices required by OSHA. You still may be cited with a violation even if no accidents have occurred in your workplace and the hazard has been avoided.
Address whether you applied for a variance.OSHA grants variances in certain situations where employers are unable to comply with specific standards.
- If you haven't applied for a variance, you must demonstrate that a variance wouldn't be appropriate if you want to succeed with this defense.
- Applying for a variance allows OSHA to evaluate your alternative method and determine whether it satisfies the same purpose as the agency's safety standard.
- Even though as the employer you bear the burden of proof for these defenses, you should keep in mind that the OSHA officer who inspects your workplace is trained to anticipate that certain defenses will be raised and to gather evidence that counters it.
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