Receiving a Citation

If a company receives an OSHA citation, there are many options. To help you decide your best course of action, let’s briefly explore the citation and appeals process.

Unless your establishment is in full compliance with OSHA’s standards, you will receive a “Citation and Notification of Penalty” from OSHA. Generally, OSHA has up to six months after it initiates the inspection to issue a Citation.

 

A Citation Includes:

  • Type of violation (classification)

  • Standard, regulation, or section of the Occupational Safety and Health Act that was violated

  • Description of the violation

  • Abatement date (date by which the violation must be corrected)

  • Penalty, if any

Citations could fall into one of the following categories…

  • Regulatory / Other-Than-Serious – failure to comply with record keeping, posting, or permit requirements.

  • General – violation of a standard that would probably not cause death or serious physical harm, but would have a direct or immediate relationship to the safety or health of employees.

  • Serious – substantial probability that death or serious physical harm could result from a condition which exists, or from practices, operations or processes at the workplace.

  • Willful – an intentional and knowing violation, as distinguished from inadvertent or accidental or ordinarily negligence, was committed and the employer is conscious of the fact that what they are doing constitutes a violation, or is aware that a hazardous condition exists and no reasonable effort was made to eliminate the hazard.

  • Repeat – a recurrence of the previously cited standard, regulation, order, or condition is found within three years of the previous violation becoming a final order.

  • De Minimis – a violation of a standard that has no direct or immediate relationship to safety and health.

NOTE: If the Willful violation results in a death, OSHA can seek criminal sanctions against an employer.

In addition, an employer can also be cited for failure to correct a previously cited condition. The Occupational Safety and Health Act allows OSHA to assess penalties for each day a violation continues past the final abatement date.

What to do if OSHA issues citations…

Posting –

If a citation is received, the first thingto do is to post the citation.

1.  Post the citation at or near the place where each violation occurred so that it will be conspicuous to employees. The purpose is to make employees aware of the hazards to which they may be exposed.

2.  The citation must remain posted:

    a. For three (3) working days or

    b. Until the violation is corrected, whichever is longer.

Posting is required even if the citation is contested.

Choices –

There are two choices should a citation be received.

Option 1: Comply with the citation. This involves correcting the alleged violations by the date specified in the citation and pay any penalty that may have been assessed. The citation will become final order in 15 days after receipt.

Option 2: Contest the citation. Once received, there are only 15 working days in which to contest the citation. This must be done in writing. If the citation is not contested within 15 days, it becomes final order. During this time, an informal conference can be scheduled with OSHA to discuss and try to reach a settlement agreement.

Should an OSHA citation be challenged?

There is no universal formula to assess whether an OSHA citation should be challenged. The decision must be made in good faith and based upon facts, which include consideration of the alleged violation, its impact on employee health and safety, the classification of the violation, the method of abatement and the cost involved in abating the alleged violation.

What to expect should an OSHA citation be contested…

Once a Notice of Contest is filed, it is reviewed for timeliness and assigned a docket number. The docket number must appear on all communications with the appeals board. Dates will be set for a pre-hearing conference and an appeal hearing. However, an informal conference can be requested and granted at any time during the process. Employees must be notified of an appeal and of their right to participate in the appeal.

An appeal may be withdrawn and proceedings terminated. Any settlement agreements must be submitted to the appeals board for its approval. At least 30 days prior to a hearing, the appeals board will send the parties a notice of hearing, advising them of the location, date, and time of the hearing before an administrative law judge. Employees must be notified of the pending hearing by posting the notice near the site of the alleged violation, in a conspicuous place, or where employees report or carry out their duties.

Hearings will only be postponed if an emergency arises or a party, its representative, or a witness has a preexisting scheduling conflict. If any party fails to appear for a regularly scheduled hearing, the appeals board will notice an Intent to Dismiss. The only way to reinstate the matter is for the absent party to establish good cause for the failure to appear within 10 days. If good cause is established, the matter will be reinstated and reset for hearing.

Can a company be cleared of OSHA citation records?

There is no method to clear a company’s record of past citations issued by OSHA. However, the longer a company operates without OSHA citations the better. OSHA can use past citations as a basis to issue citations that result in a more severe classification with increased penalties. For instance, if OSHA re-inspects the company in the future, it can issue repeated violations for conditions that were violated during the original inspection.

Can OSHA re-inspect? Is there any action that can be taken to prevent OSHA from re-inspecting in the future?

Yes, OSHA can re-inspect the company. This cannot be prevented in the future, however, being proactive can minimize the probability. By establishing safety and health programs that incorporate coordination and communication of safety and health issues among personnel; means for planning and implementing needed training and job orientation for employees; and means for identifying and controlling workplace hazardous and monitoring the effectiveness of such program, workplace hazards can be minimized and thus, reduce the chances of OSHA re-inspecting.

If OSHA re-inspects, could the result of the inspection be the same as the initial inspection?

The answer to this question is dependent on the company’s response to the initial inspection and commitment to health and safety. Only by being proactive and implementing programs that protect employees can the possibility of future OSHA enforcement actions be reduced.