Citations from the Occupational Safety and Health Administration carry serious penalties, can hinder business operation and damage a company's reputation. For example, a fine totaling more than $40,000 results in an OSHA news release that details its findings. As the compliance safety and health officer walks through your facility, she may point out violations that represent potential citations and offer corrective suggestions. The compliance officer submits her findings and recommendations to the OSHA area director who has the final say in what citations you get and what penalties you must pay.
If you can correct a violation on the spot before the inspector leaves, OSHA will consider your good-faith effort when issuing citations and assessing penalties, according to OSHA's Publication 2098 Inspections. Failure to correct any unsafe working condition could lead to a willful violation used by OSHA to penalize employers who are aware of a hazardous condition but don't address it.
Your first action after the Citation and Notification of Penalty arrives via registered mail to make copies and post them at each location where the cited violation exists. These posts remain in place for three working days, or until you correct the violation, whichever is later, according to OSHA's Employer Rights and Responsibilities Following an OSHA Inspection. You must make a citation visible to employees even if you intend to contest it. OSHA also requires cited employers to post abatement plans, progress reports and certification documents at the violation site. You can, however, announce citations involving moveable machinery parts by placing a "Warning" tag in accordance with the abatement verification rules in Standard 1903.19(i) of the OSH Act. Failure to comply with this posting regulation carries a $7,000 fine.
Weighing Your Options
OSHA gives you 15 days to either accept a citation and pay the associated penalty or send the agency a letter contesting it, the proposed penalty and the deadline to correction the violation, known as the abatement date.
If you need more time to get the corrections done, you can request an extension by filing a Petition for Modification of Abatement with your OSHA area director within one working day of the abatement deadline. Post your petition where the violation exists for 10 working days to give employees a chance to file an objection with OSHA. If your petition is denied, your case automatically becomes a contested case for review by a an administrative law judge.
Within the 15-day window you also can ask for an informal conference with your OSHA area director. The informal conference lets you get clarification on the applicable standards and understand possible correction alternatives. It's also an opportunity to request a reduced fine or citation reclassification to a lesser level, such as from "serious" to "other than serious." Your attorney can accompany you to this meeting, and OSHA will invite representatives of any affected employees to attend. An informal conference doesn't change the 15-day deadline you face, however. Nor does it erase the failure to abate penalty of $7,000 per day that you incur if you miss an abatement date.
Before contesting a citation, Epstein Becker Green's OSHA Inspection Checklist recommends considering the accuracy of the charges, reasonableness of the penalties, feasibility of the proposed abatement action and whether the citation puts the business at risk for repeat violations.
If you decide to accept OSHA's findings, you must send a check or money order payable to DOL-OSHA by Day 15, and note the OSHA number from the citation on your payment. You must also notify your OSHA area director what steps you took to correct the violations. The written notice, usually in the form of a letter, is called an Abatement Certification. Should your citations be classified as serious, willful, repeated or failure to abate, you need to provide detailed proof of your corrective action.
Filing an Appeal
By sending the OSHA area director a Notice of Intent to Contest, you gain time as OSHA suspends payment and abatement due dates for the contested violations if you do so in good faith. Your letter must tell OSHA specifically what items in the citation you disagree with and why. You may contest portions of the citation, the entire citation, the abatement date, the penalty or a combination of these factors. You must give employee representatives a copy of this notice and, like the citation, you must post it where employees can view it. A Notice of Intent to Contest puts your case in litigation. OSHA forwards it to the Occupational Safety and Health Review Commission, an independent agency who has the final say.
You may have legal representation or represent yourself at the hearing set by the judge assigned to your case by the review commission A three-member commission reviews the judge's decision. Your final option is to appeal the review commission's decision in the U.S. Court of Appeals.