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Contesting OSHA Citations

An employer has the right to contest an OSHA citation by responding in writing to the area OSHA director within 15 days of receiving the citation notice.

Petition for modification of abatement.  If an employer is unable to meet an abatement date and the 15-day period for the notice of contest has expired, the employer may file a written “petition for modification of abatement” with the OSHA area director no later than one working day after the abatement date.

An employer must post for 10 days a petition for modification of abatement and give a copy to employees’ authorized representative.  Employees have the right to file objections during that time.

Here are items to consider in preparing an OSHA case:

  • Review the citations carefully, item by item, and compare them with the particular section of the OSHA standard referenced.  Is the violation appropriate under the cited section?  Compare the citations with the notes taken during the inspector’s visit.  Are there differences?
  • Check first-aid and OSHA 300 logs to determine the incidence of injuries or job-related health concerns, if any, in the area or equipment cited.  Be prepared to bring along at least two years’ logs to the hearings.
  • Determine how often employees work or walk through the area cited.  For employees working in the area, what is the time duration of exposure?  What is the proximity of employees to the point of danger?  What is the possible severity of injury or illness if an employee were hurt?  What is the probability that an employee could be injured as a result of the alleged violation.
  • Review the history of previous OSHA inspections, citations, and settlements at the facility.
  • For uncontested violations, abate promptly and document efforts fully.
  • Go to the conference with copies of safe operating procedures distributed to other employees, copies of the hazard communication program, if appropriate, and any other management coordinating materials.
  • If penalties seem to high, say so to the OSHA director.  That person has the leeway under the regulations to adjust the penalty downward for good-faith efforts by the employer.
  • Take along key players to the hearing- the ranking manager and any other technical or staff managers who can comment in a positive way about management’s safety efforts.

If agreement is reached on the contested items at the informal conferences, the OSHA official will prepare a settlement agreement that OSHA, the employer representative, and the employee representative are asked to sign.  Failing agreement, the matter will go to the OSHRC.

Category:Legal Considerations


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