So, OSHA has visited your facility, you’ve done everything we previously talked about, and now comes the hard part…WAITING!
Very seldom will you escape an OSHA visit without a citation. Remember…the funds they collect go into the General Fund, and we as a nation aren’t doing too well financially, so they are out for every penny they can get. You quickly realize, the Compliance Safety and Health Officer (C-SHO) might have been a nice person, but OSHA is not your friend!!!
Before we go too far, let's understand a couple things about OSHA citations. They must:
- Be in writing
- Be signed by Area Director
- Describe violation with “particularity”
- Be timely (issued within 6 months of the
violation, unless continuing violation)
- Specify the proposed penalties
- Be served by certified mail
- Be posted for 3 days or until abatement is completed, whichever is longer
OSHA penalties can be severe. They are usually raised at least annually, keeping up with a cost-of-living adjustment multiplier based on the Consumer Price Index. As of this writing, the penalty structure is as follows:
- Failure to abate/correct Up to $13,260 per day
- Other than serious Up to $13,260 per day
- Serious $891 - $13,260
- Repeat Up to $132,598
- Willful $9,054 - $132,598
- Egregious Up to $132,958
- Willful violation causing death Criminal penalties - fines and prison terms.
So, the citation(s) is received. What are your options? Actually, there are several:
- Agree to citation and pay full penalty (We rarely recommended)
- Ask for an informal conference/informal settlement (This we usually recommend)
- File a Notice of Contest – must be filed within 15 working days (Federal); some state-plan states different time period. Requesting an informal conference will not toll or extend the fifteen-business day deadline to file the Notice of Contest.
- Agree to a formal settlement
- Request a hearing before an arbitrator
During the process, the burden of proof remains on OSHA. In order for the citations to be enforceable, OSHA must:
- Be able to prove the cited standard applies to the condition
- Be able to prove the employer was non-compliant with the standard
- Be able to prove that employees were exposed to or had access to the cited condition
- Be able to prove that the employer knew or should have known of the cited condition
- Be able to prove that the selected characterization (e.g., serious, willful, repeat) is appropriate
It is also important to be aware of Section 5(a)(1) of the OSHA General Duty Clause, which reads:
The employer shall furnish to each of his employees’ employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
We often see this being used as a catch-all to allow OSHA to enforce “violations” for which no codified standard exists. This is often used against employers in cases of workplace violence, and we have also seen it frequently used to issue COVID related citations.
In order to use the GDC as the basis for a citation, OSHA must prove:
- A condition or activity in the workplace presented a hazard
- The employer or its industry recognized the hazard
- The hazard was likely to cause death or serious physical harm
- A feasible means existed to eliminate or materially reduce the hazard was available and was not acted upon
If these can be met, then the GDC will likely be used as the basis for additional citations.
If you receive an OSHA citation, don’t just pay it and walk away licking your wounds. Give us a call, and we will look at your options and help you determine the best course of action available!