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OSHA Citations: What To Do, When To Contest & How To Avoid Them
Monday, Aug 31st, 2020
On December 29, 1970, President Richard Nixon signed the Occupational Safety and Health Act of 1970 into law. The following April, the Occupational Safety and Health Administration (OSHA) was formed “to assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.”
Since enforcement is part of OSHA’s mission, they regularly conduct workplace inspections and may choose to levy fines for violations of standards or for the identification of serious hazards. OSHA conducted over 33,000 inspections during fiscal year 2019, more than during each of the previous three years.
There are six main categories of OSHA violations, five of which result in civil penalties. Penalty amounts for violations increase each year, based on inflation. For 2020, all penalties saw a modest increase of about 1.8%, with the maximum penalty increasing $2,300 per violation. However, higher fines and criminal prosecution are possible if a violation results in an employee fatality.
With such high fines, on top of the potential for serious health and safety hazards, it makes sense that every employer needs to be aware of steps they can take in order to avoid fines and what to do in the event of receiving an OSHA citation.
What You Can Do if You Get an OSHA Citation
There may come a day when an OSHA compliance safety and health officer conducts an inspection of your workplace and discovers one or more violations. It would be in the best interest of your employees and your company that you are fully aware of your right to contest the violations and your responsibility to take corrective action and pay the fines.
Fortunately, OSHA “provides a general overview of employer rights and responsibilities following a Federal OSHA inspection,” but you should always consult your local OSHA area director for any specific questions or concerns.
- Agree to the Citation and Notification of Penalty by paying the fine within 15 working days and correcting the violation(s) by the abatement date indicated on the official notice.
- Request an informal conference with the OSHA area director, allowing you to discuss any portion of your citation. OSHA encourages employers to request a conference before deciding to contest a citation.
- Contest part or all of the notice, including the citation, penalty and/or abatement date. If you are only contesting a portion of the citation, you must correct the other items and pay any corresponding fines within 15 days.
- File a Petition for Modification of Abatement if you are unable to meet the given deadline but the 15-day window has passed. However, you will need to submit information such as steps you have already taken to achieve compliance and why you need more time.
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Regardless of whether you plan to contest, you must post a copy of the OSHA citation at or near the place where each violation occurred, in order to make employees aware of the hazard. This posting must remain for three working days or until the violation is corrected, whichever is longer.
There are also a number of factors that an employer can argue in an effort to reduce their given penalty. OSHA provides detailed explanations for each penalty adjustment, but some of the reasons include a good safety record, a small number of employees and a “quick fix” reduction if violations are resolved within 24 hours.
When to Contest an OSHA Citation
Deciding to contest an OSHA citation can make sense in plenty of instances, but is it the right choice for you? Here are six situations where you should consider contesting a penalty.
No violation occurred
This may seem odd, but remember that the burden to prove a violation occurred rests on OSHA, not the employer. That cannot always happen. In this case, it would be wise for the employer to contest the penalty.
Wrong category cited
When reviewing your citation and the corresponding penalty, be sure to note which category the penalty falls under. If it can be proven that your incident was a Serious violation, as opposed to a Willful violation, you could save yourself $100,000.
Risk of repeated citations
The OSHA Field Operations Manual (FOM) notes that inspectors can look up to five years in the past to determine if a repeat violation has occurred. However, in 2018, the U.S. Second Circuit Court of Appeals determined the FOM’s five-year period is not binding. If you receive a citation for something that seems possible to happen again, it may be best to try and fight the penalty.
For many of us, a reputation of safety is incredibly important, both in attracting workers and in maintaining customer relations. An OSHA citation, especially any given in the more severe penalty categories, can be far more damaging than the time and money it may take to contest the fines.
In some cases, the monetary cost of doing what is required to correct the cited issue, known as abatement, can be great. If this cost will be too much, or if business will be disrupted while trying to implement the needed controls, you should consider filing to contest the citation.
Increased insurance premiums
Depending on where your business is located, workers’ compensation premiums may increase based on health and safety violations. If this is a risk to your organization, it may be wise to avoid accepting the OSHA citation.
Keep in mind, this list is not exhaustive, and you should always request an informal conference with your area director first, as you may be able to reduce your fines for various reasons.
Tips For Avoiding OSHA Penalties
OSHA penalties can be costly, and the process of contesting a penalty can be lengthy, so here are a few actions you can take to create a safe working environment and hopefully avoid having to spend both time and money on an OSHA issue.
Develop a safety plan
Understanding what an OSHA compliance safety and health officer is allowed to investigate and what employees’ rights are both during and after an inspection is crucial, but a proper safety plan needs to start well before an inspection ever occurs.
You should identify and eliminate as many potential hazards from your workplace as possible and implement personal protective equipment, or PPE, wherever necessary. You also need to maintain accurate records of all injuries, illnesses and deaths, and train employees on proper safety procedures for both everyday work and in case of an emergency.
Many employers choose to conduct practice OSHA inspections. Just like when you had fire, earthquake or tornado drills in school, practicing an inspection means employees will be better prepared and likely more relaxed in the event of an official inspection.
Ensure comprehensive training
When a new employee is hired, the first step is often getting them trained on their role and any equipment they will be using. However, ensuring every employee is also fully trained and up-to-date on applicable safety standards could significantly reduce the incidences of workplace injuries.
Unfortunately, OSHA does not have one consistent standard for addressing safety training. Instead, if there is a specific training requirement, it is outlined in the OSHA standard itself.
Keep in mind that training does not guarantee OSHA compliance. Training simply makes employees aware of potential safety hazards. Additionally, maintaining proper training documentation can serve as proof that the employer took the necessary steps to avoid a violation, should an inspection come to that.
Provide any necessary PPE
No matter what kind of hazard may be present on a jobsite, there is some form of personal protective equipment that can help protect affected workers. Since 1974, OSHA has developed many standards for furnishing and using PPE, covering everything from clothing and fall arrest systems to hearing and respiratory protection.
With few exceptions, employers are required to provide effective PPE that will protect each affected employee from any identified hazards or potential hazards at no cost to the employee.
Employers are also responsible for providing complete training on any protective equipment that may be used, including how to properly put on, adjust and remove PPE, and understanding any limitations of the equipment.
Empower your employees
Even when employers do all they can to set up their workplaces for safety success, it is truly up to the employees to make sure safe habits are being carried out each day. In the field or out on the floor, employees will likely be the first ones to see any potential issues.
By making it easy for employees to anonymously report potentially hazardous situations, employers can take the necessary corrective actions. It is crucial for employers to make it clear that if an employee raises a safety concern or files a complaint with OSHA, they are protected from retaliation.
Employees should also be encouraged to conduct regular safety checks of their own areas to ensure standards are being met by every worker. By putting this power into the hands of the employees rather than only people in management, you will foster a culture of safety from the ground up.
Common OSHA Violations
Each year, OSHA releases a list of the top 10 most-cited violations from the previous fiscal year, and they often feature many of the same issues. In fact, the majority of the list has remained unchanged since 2012 and, for the ninth year in a row, Fall Protection has landed in the top spot.
Here are 2019’s most-cited OSHA violations, along with the corresponding OSHA regulation:
- Fall Protection – General Requirements (1926.501)
- Hazard Communication (1910.1200)
- Scaffolding (1926.451)
- Lockout/Tagout (1910.147)
- Respiratory Protection (1910.134)
- Ladders (1926.1053)
- Powered Industrial Trucks (1910.178)
- Fall Protection – Training Requirements (1926.503)
- Machine Guarding (1910.212)
- Eye and Face Protection (1926.102)
While these are the most commonly cited violations, they are also some of the most easily preventable issues. By implementing thorough training and utilizing different levels of controls, most — if not all — of these violations could be avoided.
Training for OSHA Compliance
So now that you have an idea of the steps you should take to create a culture of safety throughout your company, how do you go about implementing these action items?
Taking online safety training is convenient as each of your employees can receive training on a wide range of topics, from the uses of various PPE to understanding specific OSHA regulations and even learning proper incident reporting procedures.
Another benefit to taking training online is how easy it is to repeat training as often as is needed — or as often as you’d like. Some OSHA regulations require training to be conducted at least annually, but because you never know when an OSHA inspection could occur, it is never a bad idea to brush up on safety training even when not required.
It’s never a wrong time to evaluate your current safety program, or implement a new one, to protect your employees and ensure you are adhering to OSHA standards. Contact SafetySkills today to see how we can help you get a head start on improving your safety program.