OSHA Citations and Penalties
Citations: After inspecting the workplace, OSHA inspectors may issue citations for conditions believed to be in violation of the OSH Act. If OSHA issues citation and notification of penalty, the citation should describe the specifics of the alleged violation, fix a reasonable time for abatement, and propose alternate penalties. A citation may be issued even if an employer has taken steps to clear up the violation after the inspector pointed it out in his/her informal discussion.
Since 1986 OSHA has cited employers for each individual violation instance where violations have been particularly flagrant. Under a new 1990 directive, OSHA will issue citations on a violation - by - violation basis when violations are willful (intentional violations that display a careless or reckless disregard or indifference to the laws requirements and to employees’ safety and health) and when one or more of the following apply:
- Workers fatalities, a worksite catastrophe, or a large number of serious illnesses/injuries occur.
- Violations resulting in persistently high rates of workers injuries/illnesses.
- The employer has an extensive history of violations.
- The employer’s conduct amounts to clear bad faith in performing his/her duties under the OSH Act.
- The large number of violations found significantly undermines the effectiveness of any existing safety and health program.
Demonstrating “good faith.” “Good faith” is a factor considered when penalties for violations are computed. The Assistant Secretary of Labor for Occupational Safety and Health has said that an employer’s familiarity with regulations in the Act and specific accomplishments that show a desire to comply with the Act will be determining “good faith.” (Examples of specific accomplishments, according to the Secretary, include initiation of safety training programs, installation of protective equipment, etc.)
Employee misconduct as a defense. An employer may negate an OSH Act violation on the grounds of employee misconduct for violations over which employees have individual control. However, a work rule specific enough to meet this defense must be designed to prevent the cited violation or be its functional equivalent. The employer must demonstrate the following:
- It established work rules designed to prevent the specific violation from occurring;
- The work rules were adequately communicated to employees;
- The employer has taken steps to discover the violations; and
- The employer has effectively enforced the rules when violations have been discovered.
“De minimus” citation. The inspector may also issue a notice of de minimus- or minor- violation, which does not have any direct or immediate relationship to safety or health- for example, a technical violation such as the height of letters on an exit sign.
Posting. When an employer receives a citation under the OSH Act, it must post an unedited copy of it at or near each place an alleged violation occurred or where affected employees can see it - even if the employer is planning to contest it. The citation must be posted for three days or until the violation is abated - whichever is longer. A notice of a de minimus violation need not be posted.
Reliance on withdrawal of citation. OSHA may withdraw a citation for a number of reasons. However, the act of withdrawing a citation does not constitute a statement by OSHA that the condition is consistent with the standard’s requirement, nor does it provide the employer with a license to continue to operate its facility in violation of the Act. An employer should not rely on the withdrawal of a citation because it will not immunize from future enforcement of the OSH standard.