By Michael Metz-Topodas, Cohen Seglias

Legendary hockey player Gordie Howe once said, “The best way to get in shape is to never get out of shape!” In theory, he could have been talking about an OSHA citation defense. In other words, the best way to defend against OSHA citations is to never receive an OSHA citation. Easier said than done, of course. Keeping OSHA’s enforcement powers at bay depends on creating a comprehensive and focused safety program. Such a program should take specific, precise, and deliberate measures to lay a foundation of support to assert the many available defenses against an OSHA citation. 

The Citation Process and Common Defenses

Almost all citations originate in a workplace inspection. OSHA’s construction workplace inspections typically result from complaints to OSHA or an inspector’s observation from outside a jobsite. If an inspector observes workplace conduct during an inspection that violates any one of the thousands of OSHA workplace safety regulations, the inspector usually issues a notice of violation or citation. These citations identify the specific regulation an inspector believes a contractor violated, describe briefly the hazardous workplace conduct or condition that did not comply with that regulation, classify the violation (e.g., “willful” or “serious”), and list the fine assessed and the required measures for abating the identified hazard. Once a contractor physically receives a citation, it has 15 working days to respond, either by paying the fine and beginning abatement; informally negotiating a settlement for a reduced fine, alternative classification, and adjusted abatement; or contesting the citation with the Occupational Safety and Health Review Commission (OSHRC), an administrative law court that hears citation disputes and related matters.

In such contests, OSHA bears the burden to show it had proper grounds to issue the citation, so it must present evidence that: (1) the regulation underlying the citation governs the cited contractor’s conduct; (2) the contractor’s conduct violated that regulation and created the workplace hazard the regulation is intended to prevent; (3) the contractor’s employees were or could have been exposed to that workplace hazard; and (4) the contractor knew or should have known with reasonable awareness that its workers were or could have been exposed to a hazard. In defending against a citation, employers, including contractors, commonly present evidence that no employees were exposed to the alleged hazard or that the employer did not and could not have known about the alleged violation or risk to workers.

In addition to showing that OSHA cannot make its case, employers can assert certain “affirmative” defenses for which the employer, not OSHA, has the burden of proof. An employer can show that employee exposure to a hazard resulted from an employee disregarding the employer’s safety policies and training despite the employer’s best efforts to implement such policies and training. Unfortunately, OSHRC courts infrequently accept this unpreventable employee misconduct defense.

Employers also can show that for the conduct OSHA claims violated workplace safety regulations, complying with the regulation would create a greater hazard than non-compliance or make it unfeasible for the business to achieve its business purposes. In other words, the employer had no safer way to perform the activity while still accomplishing its work. Presenting such a defense often runs up against OSHA’s voluminous research and data underlying the regulations’ precise and technical requirements.

How Contractors’ Safety Programs Should Support OSHA Citation Defenses

Given the requirements and obstacles in asserting these defenses, successfully using them depends on having a safety program oriented towards preserving necessary evidence. Written safety policies, comprehensive training, regular safety monitoring, and strict enforcement can contribute to a successful citation defense.

• Written Policies: Contractors should have written policies and practices that align as closely as possible with applicable regulations. For example, a masonry subcontractor should have policies that mirror OSHA’s silica regulations (e.g., Table 1, 29 C.F.R. 1926.1153(c)(1) (listing “engineering controls, work practices, and respiratory protection” for various activities that could generate respirable crystalline silica)). In addition to overall policies, contractors should perform and record job hazard analyses (JHAs) for each worksite and every part of project work that poses safety risks. Drawing on these JHAs, contractors should also prepare job-specific safety plans as required or if not already covered in the JHA. Contractors can rely on all of these written policies to counter an OSHA claim that the contractor’s workplace did not comply with applicable regulations. Further, such policies support feasibility and greater hazard defenses because they prove the contractor considered all applicable safety requirements and alternatives in determining project operations.
• Trade Specific Training: Written policies mean little without instruction and guidance on recognizing hazards and performing tasks that comply with those policies. Training takes several forms—formal certified classes from outside instructors, internal training seminars, toolbox talks, and day-to-day direction from managers and supervisors. Because most OSHA citation investigations probe relevant worker training early in the process, robust training programs can blunt or restrain such investigations.
• Safety Monitoring: No amount of written policies and training can ensure workers actually comply with such safety requirements. So, contractors must observe workers’ onsite performance to ensure proper safety procedures are followed. Monitoring includes regular project supervisor or manager jobsite observations and surprise safety manager inspections. Third-party audits provide further feedback on how well a contractor’s policies address relevant safety risks and how effectively workers follow such policies. Robust monitoring programs support the argument that OSHA cannot show the required employer knowledge. Where such an argument succeeds, the citation must fail.
• Enforcement: Vigilant monitoring invariably leads to observing workers violating safety rules. A strong safety program has policies that outline consequences for such violations, usually progressively more significant disciplinary measures. Such policies’ effectiveness depends on the people enforcing them, so contractors must apply this progressive discipline evenly to all violations and all workers, regardless of level or competence. With such disciplinary programs, contractors preserve a vital element of the unpreventable employee misconduct defense and develop support for other defenses.

Three Key Rules for a Successful Safety Program: Document, Document, Document

On the question of existence, OSHA has found a simple answer: “If it’s not written down, it does not exist.” So none of the above safety program features can support a citation defense if written records are lacking. All safety policies and required practices must be in writing, whether in a company safety manual or other written safety plans and policies. All training events—from formal classes to toolbox talks to impromptu safety discussions—should be recorded using written program content materials and sign-in sheets. Daily logs or reports should record any day-to-day project safety monitoring, including manager observations, safety manager inspections, and outside audits. Finally, any disciplinary proceedings should have written records.

How Safety Programs’ Support of Citation Defenses Prevents Citations

Not only do these described measures form essential components of certain citation defenses (as explained in italics), but they also promote overall project safety. Written policies clarify safety expectations and practices for workers. JHAs and project-specific safety plans force managers and supervisors to give individualized considerations to targeted safety measures. Frequent training helps ensure safety concerns remain prominent in all team members’ minds as they perform daily work. Regular worksite observations help stop hazardous conduct before it can lead to injury or worse. Strictly enforced progressive discipline promotes compliance with safety requirements. In other words, not only does a proper safety program develop the evidence needed to assert certain citation defenses, but it also reduces the risk of worker injury and promotes overall workplace safety. Such a workplace minimizes safety regulations violations and thus citations. A proper safety program does not get contractor safety into good shape; instead the program ensures contractor safety never gets out of shape.

Michael Metz-Topodas is a partner at Cohen Seglias. As a construction litigator, he represents general contractors, subcontractors, owners, designers, and suppliers through all stages of private, public, and federal projects. Michael helps clients navigate construction project disputes, including delay and inefficiency claims, design and construction defects, unforeseen site conditions, project scope disputes, and payment claims. He also defends clients against OSHA citations and advises on OSHA compliance issues. He can be reached at mmt @cohenseglias.com and 267.238.4755.