By Joseph M. Kanfer, Esq., Woolford Kanfer Law, P.C.

Even the most safety-minded contractors may find themselves on the wrong end of an OSHA citation, which can be damaging to the business if the contractor is not prepared. However, with good safety policies and documentation practices, contractors can give themselves a fighting chance to minimize the cost and impact on their businesses when an OSHA citation comes and improve safety at the same time.

The OSHA Citation Process

An employer has 15 working days after receiving an OSHA citation to request a formal hearing before the Occupational Safety and Health Review Commission (OSHRC). OSHRC proceedings can be time-consuming and expensive, which can make challenging minor violations impractical. However, an employer also has the opportunity during the 15-working day period to request an informal conference with an OSHA official. An informal conference is a negotiation session where an employer can discuss the citations with OSHA in the hope of reducing the severity level of the citation, decreasing the amount of the fine, or even deleting some of the violations entirely.  

The informal conference can be a valuable opportunity to quickly and inexpensively resolve OSHA citations without having to go through the formal hearing process. However, an employer must be prepared to present OSHA with a compelling reason to adjust the citation supported by written documentation. If an employer can show OSHA that it may have legitimate defenses to a citation, it can often reach a settlement agreement with OSHA to modify the citation in its favor in exchange for so-called “enhanced abatement,” or implementing additional safety measures. Below, I will discuss two of the most common and important defenses – the employee misconduct defense and the lack of knowledge defense – and what you can do ahead of time to maximize your chances of success at an informal conference in the event of a citation.

The Employee Misconduct Defense

Contractors spend a great deal of time creating safety programs and rules to protect their employees and comply with OSHA regulations. However, even the most safety-minded employers have employees who sometimes just do not follow the rules. OSHA’s regulations recognize this by providing for the employee misconduct defense. The rationale for the employee misconduct defense is that a diligent employer who establishes, communicates, monitors, and enforces appropriate safety rules in compliance with OSHA regulations should not be penalized if his employees fail to follow those rules. The employee misconduct defense is one of the most common and important defenses an employer has against an OSHA citation, but it requires diligent recordkeeping and enforcement of safety policies to be effective.

The employee misconduct defense is an affirmative defense, which means that the employer must prove that it meets all the requirements of the defense to take advantage of it. To prevail on the employee misconduct defense, an employer must establish four things:
(1) the employer established a work rule to prevent the violation;
(2) the rule was adequately communicated to employees;
(3) the employer took reasonable steps to discover violations of the rule; and
(4) the employer effectively enforced its safety rules.  

The key to this defense is that it is not enough to simply have a written safety policy and show that the employee violated it – that is only the first element of the defense. Many employers believe that if they show up to an informal OSHA conference and explain that their employee did not follow established policy that they will be off the hook. This will not work. OSHA requires more from employers.

In addition to having a written safety policy that the employee violated, an employer must demonstrate that the policy was adequately communicated to employees. After all, a great safety policy is meaningless if employees do not know about it. The ideal way to show that a policy was communicated to employees is to conduct training sessions on the policy and have a record of the employee’s attendance, such as a certificate of completion or a sign in sheet. Having both a written policy and documentation of how it was communicated to the employee, including copies of all written training materials, are critically important. It will be difficult to convince OSHA that you complied with these requirements without written documentation.

Once the employer has a written policy in place and communicates it to employees, the employer must take reasonable steps to discover violations. This can take many forms. At a minimum, site superintendents and foremen should be trained in safety procedures and be required to monitor, document, and correct violations. An employer should also have a safety or project manager visit job sites periodically to conduct safety audits to make sure that employees are following safety rules. Outside safety consultants can also be hired to conduct mock OSHA inspections or audits. Whatever method an employer uses, it must be conducted on a regular basis and well documented. A contractor must be prepared to provide documents to OSHA showing how safety efforts were being monitored, such as checklists showing that supervisors or managers verified that safety policies were being followed or reports from site visits or audits.

Finally, an employer must establish and follow policies to discipline employees for safety violations. Employers with established and well-communicated safety policies often fail to consistently enforce them for fear of alienating employees. However, a disciplinary policy for safety violations does not need to be harsh or draconian. Rather, employers should establish clear progressive discipline policies where isolated safety violations result in verbal or written warnings, but employees who repeatedly violate safety rules are subject to more serious penalties such as suspensions from work without pay or, in severe cases, even termination. Such policies are not popular among employees, but they protect both the employee as well as the employer from the consequences of safety violations. And again, it is critical that all disciplinary actions – even verbal warnings – be documented so they can be shown to OSHA as evidence that you enforce your disciplinary policies.

Establishing, communicating, monitoring, and enforcing safety policies is one of the best ways to ensure that you, the employer, are equipped to negotiate the best possible outcome of an OSHA citation and, if necessary, to defend yourself at an OSHRC hearing.

The Lack of Knowledge Defense

The lack of knowledge defense is not really a defense at all. Rather, for every violation, OSHA must prove that the employer knew or should have known of the violation. For example, imagine that an OSHA inspector witnesses an employee working in a trench without an adequate protective system such as a trench box or benching. If the employee was in the trench for just a moment and could not have reasonably been observed by a supervisor, OSHA may not be able to prove that the employer had knowledge of the violation. If, however, a site superintendent or foreman witnessed the employee working in the trench unprotected – or, worse yet, instructed the employee to enter the trench without protection – then the employer will be deemed to have knowledge of the violation. Different rules apply when the supervisor committed the violation.

Even if the employer does not have actual knowledge, it may still be treated as having knowledge of the violation if it could have known of the violation through the exercise of due diligence. If a violation is in plain view and obvious, the duration of the violation was not brief, and the employer failed to regularly inspect the job site for violations or failed to properly train employees, then the employer may be deemed to have knowledge of the violation.  

For example, consider an employee who fails to wear PPE for a brief moment and is observed by an OSHA inspector. If the employer has policies and documentation to show that the employee was trained in the use of personal protective equipment (PPE) and the site superintendent or foreman regularly checks for PPE compliance but nonetheless did not observe the employee failing to wear his PPE, then the employer may be able to successfully argue that it did not have knowledge of the violation. However, if an employee is walking around the job site for an extended period of time without wearing required PPE and the employer cannot show that his onsite supervisors were regularly checking for PPE compliance, then the employer will likely be deemed to have knowledge of the violation. Having good policies and documenting compliance with them can make the difference here.  

Conclusion

Defending against an OSHA violation can be a complex matter, and you should always consider discussing any citation you receive with your lawyer to determine how to respond and what the consequences of the citation may be. However, preparing in advance for OSHA violations by establishing, communicating, monitoring, and enforcing safety policies can help give you and your lawyer ammunition to negotiate or defend against OSHA citations that you may receive – and may help prevent employees from violating the rules to begin with.

About the Author:

Joseph Kanfer, Esq., Woolford Kanfer Law, P.C., is an attorney in Lancaster, Pa., who represents subcontractors and other construction professionals. He can be reached at (717) 290-1190 or jkanfer@woolfordlaw.com.