Risk Insights | Responding to OSHA Citations: Appealing

Responding to OSHA Citations: Appealing

An OSHA inspector visits a workplace and issues one or more citations. What happens next?

Citations, which are mailed by the OSHA area director shortly after an inspection, indicate the fine assessed and the abatement period to correct the health or safety violation. Violation classifications include the following:

• Serious violations—A hazard that could cause death or serious physical harm, and the employer knew or should have known about the hazard
• Other-than-serious violation—A violation that relates to workplace safety or health but is unlikely to cause death or serious physical harm
• Failure to abate—Occurs when an employer does not correct a cited violation by the required abatement date
• Willful violation—A violation committed with intentional disregard for OSHA requirements or with plain indifference to employee safety
• Repeated violation—Issued when an employer has previously been cited for the same or a substantially similar condition.

Should an Employer Contest an OSHA Violation?

When an employer knows a workplace safety standard was violated and cannot present evidence to dispute the citation, it may be best to accept the citation and pay the penalty. However, if the employer believes there is evidence demonstrating that the business complied with applicable safety and health standards, contesting the citation may be appropriate. A citation may be contested for any of the following reasons:

• Not believing a safety or health order was actually violated
• Believing the violation was improperly classified (e.g., classified as willful when it should be serious)
• Believing the abatement requirements are unreasonable
• Believing insufficient time was allowed to complete abatement requirements
• Believing the penalty assigned to the violation is unreasonable

When an employer is unsure whether to contest a citation or simply pay the fine, determining which option will be more complex or costly can be difficult. Employers should carefully evaluate the facts and evidence surrounding the alleged violation before making a decision.

Employers may wish to consider the following factors when evaluating a citation:

• The strength of the citation—Employers should evaluate whether OSHA has sufficient evidence to support the citation and whether the business has evidence to dispute it. Supporting documentation may include photographs, written policies, inspection records and employee testimony.
• Abatement requirements and associated costs— Employers should not assume accepting a citation is the easiest option simply because the fine appears small. Correcting the violation may require equipment, facility or operational changes that could result in significant costs. If these costs are substantial, the business should carefully evaluate whether the citation was justified.
• The potential fine— Employers should understand how OSHA evaluates violations to determine whether a proposed penalty is appropriate. Accepting a fine simply because it appears insignificant may not be the best long-term business decision.
• The potential for collateral litigation—Accepting a citation may also expose employers to additional legal consequences. Workplace accidents can lead to third-party lawsuits, such as claims brought by engineers or property owners. In addition, if a willful violation is cited, some states allow employees to seek double compensation. If the citation appears unjustified, employers should consider these potential legal risks before accepting it.
• The potential for repeat violations—According to OSHA, a violation may be classified as repeated if employers were cited for the same or a substantially similar violation anywhere in the country within the past five years. For businesses with multiple facilities, a similar violation at another location could result in a repeat citation. Because repeated violations can carry significantly higher penalties, employers should carefully evaluate whether to accept or contest the initial citation.
• Possible impact on labor relations—If labor unions believe unsafe practices occurred and employers accept the citation without contesting it, the business could experience strained employee relations.
• Undesirable effect on reputation or competitive position—Even when penalties appear relatively small, employers may face consequences beyond the cost of the fine. Public awareness of unsafe or unhealthy workplace practices could damage the business’s reputation and create a competitive disadvantage.

OSHA may reduce proposed penalties based on factors such as employer size, good-faith safety efforts and the employer’s history of compliance. Serious violations may also be reduced for employers with strong safety practices and a positive compliance history. In many cases, employers can resolve disputes with OSHA through informal conferences or settlement discussions before a formal hearing occurs. OSHA generally seeks to resolve disputes without lengthy legal proceedings whenever possible.

What Happens After Appealing?

If an employer decides it is in the business’s best interest to contest alleged OSHA violations, a written notice of contest must be filed within 15 working days of receiving the citation. If the employer files after the 15-day period, the citation becomes a final order and is no longer subject to review.

The case will then be forwarded to the Occupational Safety and Health Review Commission (Commission), an independent agency separate from OSHA and the Department of Labor. As a result, the commission is not bound by the terms of the original citation. No action occurs until the case is docketed, meaning it is assigned a case number and an administrative law judge (ALJ). Employers may not receive the docketed appeal packet for several months after filing the notice of contest.

The case may then be resolved in one of two ways:

1. The employer may reach a settlement during a pre-hearing conference. This conference often provides the best opportunity to dispute the citation without proceeding to a formal hearing. If the dispute remains unresolved after discussions with the OSHA area director, the ALJ may join the conference to mediate and attempt to reach a resolution.
2. The case may proceed to a formal hearing if neither party is willing to compromise. Because the ALJ independently reviews the case, the judge may uphold, modify or vacate the alleged violations and penalties. Employers should carefully prepare evidence and testimony because the judge may identify issues that were not raised during the original inspection. If the decision is reversed in favor of the employer, the business may petition to recover certain hearing costs.

In many cases, these proceedings result in penalty reductions or the removal of citations. Employers who present strong supporting evidence during informal conferences may see penalties reduced or citations modified.

While requesting an informal conference or formally contesting a citation may offer advantages, employers should ensure they are well prepared for these discussions. Presenting a well-supported case may increase the likelihood that penalties are reduced or removed from the record.

Options After a Lost Contestation

If the ALJ rules against the employer and the employer believes the citation remains unjustified, the employer may request reconsideration of the decision. The request must be filed within 35 days of receiving the written decision from the ALJ. Reconsideration requests must generally be based on one or more of the following:

• The ALJ acted in excess of their authority.
• The decision was obtained through fraud.
• The evidence presented did not justify the findings.
• New material evidence has been discovered that could not reasonably have been presented during the hearing.
• The findings do not support the final decision.

Contesting a Granted Abatement Period

Employers who believe the OSHA area director did not allow sufficient time to correct safety or health issues associated with a citation may file a Petition for Modification of Abatement (PMA). Unlike a formal notice of contest, a PMA may be filed with the OSHA area director even after the 15-day contest period has expired.

Employers should submit a written statement explaining the steps already taken to correct the hazard, the additional time needed to complete abatement, interim measures implemented to protect employees and evidence that the citation was posted in the workplace. The OSHA area director will then approve or deny the request. If the PMA is granted, follow-up inspections may occur during the extended abatement period. If the request is denied, the citation automatically becomes a contested case.

Although these procedures apply to most employers nationwide, states with OSHA-approved state plans may have slightly different processes for appeals, penalties and abatement periods. Before contesting an OSHA citation, employers should review the specific requirements that apply in their state.

Carefully evaluating OSHA citations and understanding the appeals process allows employers to make informed decisions about how to respond. Taking a thoughtful approach can help protect the business while ensuring workplace safety concerns are addressed appropriately.

This Risk Insights is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel or an insurance professional for appropriate advice. © 2023 Zywave, Inc. All rights reserved.