Accidents happen. Mistakes on the job happen. Forgetfulness and human error happen.

Unfortunately, none of this is an absolute defense to an Occupational Safety and Health Administration violation.

OSHA demands documented efforts for any defense to be considered.

Employers cited for violations of OSHA regulations often face huge penalties, including hefty fines, business loss, criminal charges, and greater future oversight.

Just this year, OSHA upped the maximum penalty for serious and other-than-serious violations to $13,260—and 10 times this amount for willful or repeat violations.

So is there any good news for employers?

Yes.

An OSHA citation can sometimes be beaten or controlled where the incident does not involve bad faith, isn't something particularly egregious, or the underlying act isn't within the employer's sole control.

For well-meaning employers, there are a number of affirmative defenses against OSHA citations.

Proper advanced planning, training, and legitimate procedures dramatically increase the chances of a successful defense and minimal fines.

Here are a few of the big defenses:

Employee Misconduct or 'Isolated Incident' Defense

Probably the most common defense, the employee misconduct or "isolated incident" defense, holds that an employer should not be punished for actions of employees who have been given all opportunities and resources necessary to fully comply with the law.

In order to establish this defense, an employer must show:

  • The violation results exclusively from the employee's conduct
  • No supervisory personnel participated in, observed, or consented directly or implicitly to the violation
  • The employee's conduct went against a well-established company policy or work rule in effect at the time of the violation

Proper planning, training, and legitimate procedures dramatically increase the chances of a successful defense and minimal fines.
This defense depends on well-written workplace policies and training programs.

It also requires adequate records that prove these policies and programs were received by the offending employee or employees.

Employers must also establish that these policies and programs are enforced, for example, by frequent company work site inspections and well-documented discipline for violations.

Impossibility of Compliance

Another defense is impossibility of compliance, based on the assertion that compliance is impossible because of the nature of the employer's work.

To successfully use this defense, an employer must prove compliance was functionally impossible or would preclude performance of required work.

One must also show alternative means of protection were either in use or unavailable.

For example, the Occupational Safety and Health Review Commission once accepted this defense from a contractor who did not install handrails on a stairway used by its employees.

The commission accepted the contractor's argument that the handrails would make the stairs too narrow for the equipment the employees were carrying and would have been of little help since the employees had to use both hands to carry it.

Employers with this type of work should implement and train employees on a site-specific safety plan, recognizing this impossibility, and outlining the alternative safety procedures and protocol.

Producing this plan and documentation of its implementation is the only way OSHA will consider this defense.

Greater Hazard Defense

Similar to the impossibility of compliance defense, in the greater hazard defense an employer argues that compliance would have created a greater hazard than noncompliance.

To establish this defense, an employer must prove:

  • The hazards created by complying with the standard are greater than those of noncompliance
  • Other methods of protecting employees from the hazards are not available
  • A variance is not available

Remember: if it's not on paper, in OSHA's mind, it didn't happen.
A variance is a regulatory action that permits an employer to deviate from the requirements of an OSHA standard under certain conditions.

Employers can request a variance for many reasons, including not being able to fully comply on time with a new OSHA standard because of a shortage of personnel, materials, or equipment.

The second requirement is that a contractor actually seek a variance and raise the greater hazard defense in the variance proceeding before exposing its employees to the risk.

The OSHA review commission has held that failure to do so essentially nullifies this defense.

Key Takeaway

If employers learn anything from this article, it should be that preparation and documentation are keys for overcoming OSHA citations.

An employer who can provide documentation of the workplace safety policies created and the company’s good-faith efforts to ensure employees understand the policies and follow them is in a better position than the employer with no tangible evidence.

Remember: if it's not on paper, in OSHA's mind, it didn't happen.


About the authors: Robert G. Brody is the founder and managing member of Brody and Associates, LLC, a Westport management-side labor, employment, and benefits law firm. Lindsay M. Rinehart is an associate with Brody and Associates, representing employers in labor and employment law matters.