A Defense For OSHA Citations

Have you had an OSHA visit recently? Most likely not, but each year there are numerous OSHA inspections conducted in our industry. The inspections usually stem from employee complaints, serious accidents or just random inspections. The point is, you never know when an OSHA compliance officer will show up for an unannounced inspection.

Let’s assume for a minute that you have an OSHA inspection as a result of an accident. You’re not worried about the inspection because the accident occurred because an employee failed to follow a clearly written safety rule that had been posted and thoroughly communicated and reviewed with the workforce several times. You even had good documentation of the communication (training) via your safety meeting records.

Yet, OSHA cites you for a violation of an OSHA standard. Your written safety rule had been established to enhance your safety program and to prevent such a violation, but the employee failed to comply. You ask yourself, how can that be? What more could I have done to prevent such a citation?

There are two critical steps missing from your process to make sure your safety rules are effective. You need to have a process in place to ensure the employees are complying with the written requirements, and you need to enforce the rules when you find an employee who is not complying with the rule.

If you have a process in place to observe employees to ensure they are complying with written safety rules and you have an effective enforcement program when violations are observed, not only do you have a more effective program, but you also have a good defense against OSHA citations.

Employee misconduct is an “affirmative defense” to a failure to meet the requirements of an OSHA standard. To establish the defense, you must prove that you have:

  • Established work rules designed to prevent the violation
  • Adequately communicated these rules to the employees
  • Taken steps to discover violations
  • Effectively enforced the rules when violations are discovered.

Most employers have the first two elements in place. Where employers usually come up short is the lack of a program or system to monitor compliance with the rules and the lack of an effective, consistent enforcement of the rules. Both require some form of documentation so it can be demonstrated that these steps are in place.

Therefore, if the employer can show that it did not know (and reasonably could not have known) that the employee was not complying with the rule, that it had an adequate work rule requiring the employee to comply, and that the work rule was effectively communicated and uniformly enforced, the employer may not be responsible under OSHA requirements for the violation.

If OSHA cites you for a violation and you have the four-step process in place necessary for the “unpreventable employee misconduct” defense, you can try and have the citation deleted or amended at the informal conference. If that fails, you can take your case to the Occupational Safety Health Review Commission (OSHRC) that hears disputes between OSHA and employers. OSHRC has recognized “unpreventable employee misconduct” in past cases as a defense to OSHA citations and has ruled in favor of the employer.

The inspections usually stem from employee complaints, serious accidents or just random inspections.

Gases and Welding Distributors Association
GAWDA OSHA & EPA Consultant Thomas W. Eynon is senior associate at B&R Compliance Associates LLC, based in Merritt, North Carolina. Members can reach him at (252) 745-7391 and at tom.eynon@brcompliance.com.