What to do if an OSHA violation arrives
Immediate steps to take if your firm is cited after a workplace injury
Accidents happen. They can happen to even the most safety-minded employers. An employee falls from a ladder and breaks a bone. A worker is injured on a piece of machinery. Someone becomes ill after inhaling chemical fumes. Any of these situations, and countless others, can lead to an OSHA inspector visiting your workplace.
Most often, when such an inspection follows a workplace injury, OSHA will most likely find at least one violation of one or more safety standards. When that happens, OSHA will issue a citation and notification of penalty. The citation will identify the specific violations found, with references to the particular OSHA standards at issue, along with a deadline for abating the violation, and the proposed penalty.
The first thing that employers must do when they receive an OSHA citation is to post a copy of the citation at or near the place where each violation occurred. The posting requirement is meant to make employees aware that they may be exposed to hazards in the workplace. OSHA regulations require that the citation remain posted for three working days or until the violation is corrected, whichever is longer.
The next thing an employer should do is review the citation carefully and consider the available options for dealing with it.
The first option is to accept the citation, abate the violation, and promptly pay the proposed fine. This approach may make sense if the violation is straightforward and easily corrected, and when the fine is relatively small.
If the employer disagrees with the citation, the employer must act promptly. OSHA regulations provide just 15 working days — excluding weekends and holidays — to contest a citation. Prior to filing a Notice of Intent to Contest, most employers ask for an informal conference with the OSHA area director responsible for their geographical area. An informal conference is an informal meeting between the employer and the area director to discuss the citation and exploring possible settlement as a way of avoiding a formal contest.
Before the informal conference, the employer will want to assemble any documentation they may wish to show the Area Director, including training records, incident reports, photographs, evidence of abatement, and anything else that may be helpful to the employer’s case.
During the informal conference, the employer and area director will discuss the violations and standards referred to in the citation. Based on the information provided to the area director, it may be possible to get one or more of the violations eliminated or reclassified (for example, it may be possible to get a “serious” violation reclassified as “other than serious”).
The informal conference is also an opportunity to discuss abatement of the violations cited. Employers can ask questions about what is necessary to abate the violation, and if the employer needs more time to complete the abatement, that can be requested as well. While it is unlikely that the area director will prescribe or “approve” a specific abatement for any unsafe condition, employers often find the discussion with the area director about abatement helpful in resolving the issue.
Employers can also attempt to negotiate a reduction in the proposed penalty at an informal conference. Some of the factors that may have a bearing on whether the penalty will be reduced can include the size of the employer, the employer’s efforts to correct the problem and the employer’s good will or demonstration of a strong safety record and willingness to prioritize employee safety.
Area directors only have so much discretion in how they can reclassify violations or reduce penalties, so employers should go into the informal conference with reasonable expectations. Employers also should consider being open to agreeing to additional OSHA trainings or safety consultations, which OSHA may add as a condition of a settlement offer.
Requesting an informal conference does not pause the 15-working day deadline for filing a notice of intent to contest, so employers should act quickly to request one early enough to ensure that the conference and any settlement negotiations can be completed before the employer needs to decide whether to move forward with a contest.
If the employer and the Area Director are unable to come to a settlement agreement, the employer will need to decide whether to accept the citation, or to move forward with the formal contest.
Many employers choose to have an attorney attend the informal conference with them. While it is not necessary to have counsel for this part of the process, an attorney can assist employers in understanding the legal requirements of the standards referenced by OSHA in the citation. The attorney can also advise the employer on the risks of entering into a settlement or contesting the citation as well help to negotiate a settlement.
Adam Hamel, a director at McLane Middleton, is and chair of the firm’s Employment Law Practice Group. He can be reached at 781-904-2710 or firstname.lastname@example.org.