December 2014 newsletter

• What to do when an OSHA citation arrives: step by step
• FDRsafety now provides Safety Program Management

Join Our Mailing List

What to do when an OSHA citation arrives: step by step

By Jim Stanley
President, FDRsafety

Despite your best efforts to operate a safe workplace, the bad news has arrived: OSHA has issued a citation to your company. If you are like many organizations, you may be uncertain what to do next. Here is a step-by-step guide.

• First, be aware you have 15 working days from receipt of a citation to begin formally contesting it. During those 15 days, you may go to your local OSHA office to request an informal settlement conference, during which you can often achieve a reduction in the assessed penalty or a modification of the abatement date, or even a withdrawal or reclassification of the alleged violation. Settlements can also be reached after the formal appeals process begins. It is important to note, however that if you miss the deadline to start a formal appeal, the citation becomes a final order.
• Before engaging with OSHA, it is important to know where you stand:
  • Conduct your own fact-finding. Make sure the allegations made in the citation are correct.
  • Review the OSHA regulations cited in each violation. Check to see whether the facts of the situation correctly match the regulation alleged to have been violated.
  • Determine whether any employees were actually exposed to the alleged hazard. Without actual exposure, the alleged violation may not hold up.
  • Determine whether anyone in your company knew of the alleged hazard in advance or could have known through the use of reasonable diligence. If no one knew, OSHA may have a problem making the case to cite you for a serious violation.
• Review this information and determine whether you want to contest the alleged violation. Appeals begin by filing a “Notice of Contest” with the OSHA area director. You may appeal the violation itself, its classification, the proposed penalty or the abatement deadline, or all of these. Filing the Notice of Contest puts a hold on the abatement deadline until the matter is settled or the Review Commission or a court issues a final order upholding the citation.
• If you start the formal review process, engage with the Solicitor’s Office at the U.S. Department of Labor to see if you can arrive at a negotiated settlement. (Do you need an OSHA lawyer? Well, you can represent yourself, but if you do, you’ll have a fool for a client.)
• If no negotiated settlement can be reached, the next step is a proceeding with a hearing officer, which usually takes place within 9 to 12 months. Any appeal from the hearing officer goes to the three-member OSHA Review Commission. From there, further appeals are made to the U.S. Circuit Court of Appeals.

One question that companies frequently raise as they move through the process is whether they should go ahead with abatement for the alleged violations. My advice is to correct any hazard in your workplace that may expose employees to harm. If no such hazard exists, my advice is to wait until the contest is resolved.

Jim Stanley is a former Deputy Assistant Secretary of Labor for OSHA. Contact him at jstanley@fdrsafety.com or 513-317-5644.

FDRsafety now provides Safety Program Management