Defense Tactics to OSHA Citations

While it may seem like there is nothing that can be done when the Occupational Safety and Health Administration (OSHA) issues fines to a company, there are some affirmative defenses of which employers should be aware. An affirmative defense, if properly argued, can help to get the citation(s) vacated – meaning you don’t have to pay an otherwise hefty fine! Here is a summary of the most commonly used affirmative defenses:

Greater hazard defense: In a situation where compliance with an OSHA standard poses a greater risk to workers than noncompliance, this defense may be applicable. However, the employer must also demonstrate that there are no alternative protective means, and an application for a variance would be improper.

Unpreventable employee misconduct: Also known as the isolated occurrence or incident defense, OSHA does not fine employers for the actions of their employees when those employees have been afforded sufficient resources and opportunities to comply with the law. Establishing this defense requires the employer to show that (1) there is adequate policy in place to avoid the violation, (2) the policy is communicated to the employees, (3) procedures are followed to ensure employees are complying with the policy, and (4) enforcement mechanisms are utilized when policy violations are discovered.

Impossibility of compliance defense: If compliance with an OSHA standard makes it impossible to complete required work, and there is no alternative means to protect employees, this defense may be applicable. For example, would an unguarded table saw, if guarded, make one’s work impossible? If so, did the employer seek out ways to avoid or minimize the hazard and attempt to use the guard? If the answer is yes to all questions, the defense has a strong likelihood of survival. But if the unguarded table saw makes one’s work just more difficult, and not impossible, this defense does not apply.

Lack of employee exposure or non-use of equipment defense: OSHA has the burden of proving that a violation directly poses a danger to workers. But if an employer can argue that no direct risk to personnel exists, the violation may be dismissed. Furthermore, if equipment is not in use due to damage or the need for repair, and it’s clearly marked as inoperable, the employer should prevail over an issued violation.

For more information, please see: OSHA Affirmative Defenses.