Your job site was recently visited by an OSHA inspector and they found some violations. You’ve received the formal citation and are wondering what your next steps should be.
It can be confusing and a bit frightening to receive a citation, so we’ve put together this guide to walk you through the steps of responding to an OSHA citation.
If you don’t follow the procedure correctly, and meet the required deadlines, you could be looking at increased penalties and possibly further citations.
Citation vs violation
Before we get into the process of responding to a citation, let’s look at two terms that can be confused for each other – citation and violation.
A violation is the action or lack of action that is not meeting OSHA’s standards for safety or health. For example, not providing the proper PPE for a worker cutting concrete is a violation.
A citation is the notice you receive that informs you there’s been a violation. It includes information on the nature of the violation, potential penalties, correction suggestions, and the timeline in which those corrections need to be made.
Throughout this process, the date you receive the citation is the trigger for all other deadlines, so it’s important to review the citation as soon as it’s received.
Types of OSHA violations
OSHA recognizes six types of violations: willful, serious, other than serious, de minimis, failure to abate, and repeated.
A willful violation is when an employer demonstrates an intentional disregard for OSHA requirements or indifference towards worker safety and health.
A serious violation is one where there is substantial probability of death or serious physical harm that could result from a condition or practices.
An other than serious violation is one that most likely wouldn’t lead to death or serious physical harm, but still would have a direct and immediate effect on employee health or safety.
De minimis violations are when an employer implements a measure different than one specified in OSHA’s standards. These don’t have a direct relationship to safety and health, and therefore do not result in citations or penalties.
A failure to abate violation occurs when a previous citation is not corrected and is discovered on a subsequent inspection.
A repeated violation is one that an employer has been cited for within the last five years and is repeated.
Types of OSHA violations
The first thing you must do after you receive an OSHA citation is post the citation, or a copy of it, near the location where the violation occurred. You must do this even if you later decide to contest the citation. It must be where employees can see it and must remain posted for three working days or until the violation is corrected, whichever is longer. Failure to do this is a violation and can result in a penalty.
Along with the citation, you will need to post documents related to abatement of the hazard, including plans and progress reports.
Next, you must decide how to respond to the citation. If you disagree with any part of the citation (the violation, penalty amount, or abatement deadline date) you must notify OSHA within 15 working days of receiving the citation. You may also request an informal conference to discuss any part(s) of the citation, but this must also be done within 15 working days and does not remove the requirement for a response to the citation within 15 days of receipt.
If you agree with the citation, penalty, and abatement deadline, you can proceed with the required corrections, pay the penalty, and send a letter to OSHA stating your acceptance. Once you have done this, the citation is considered finalized.
Note that if you do not respond within the 15 working day deadline, the citation order becomes final and you are required to abide by the citation’s terms.
How to contest an OSHA citation
1. Submit a Notice of Intent to Contest
If you are contesting an OSHA citation, you must submit a Notice of Intent to Contest within 15 working days of receiving the citation. In the notice you must state which violation(s) you are contesting and what is being contested (the violation, penalty, or abatement deadline).
Note that the due dates and payment terms still apply for any non-contested violations.
2. The case is sent to OSHRC
Once your Notice of Intent to Contest has been received, it will be assigned to an administrative law judge at OSHRC (Occupational Safety and Health Review Commission), and a hearing will be scheduled. You may choose to retain a lawyer to assist with your case, or you may present it yourself.
The judge will make a decision based on the evidence heard and presented at the hearing.
3. You can appeal the judge’s decision
If you disagree with the decision made by the judge, you can appeal the decision for review by the entire OSHRC. Their decision can be further appealed to the Federal circuit court.
Are OSHA citations public information?
Under the Freedom of Information Act, anyone can request a copy of citations and other documents in regard to a specific contractor or company. Some state OSHA organizations may post their citations on their website.
Prompt response is key
To avoid further violations, citations, and penalties its important to respond to an OSHA citation properly and in a timely manner. Upon receipt of the citation, post it near the location of the violation(s) and decide whether you want to contest the citation or not. You can request an informal conference to discuss the violation(s) with an inspector. However, you must still send your response to the citation within 15 working days. If you agree with the citation, pay the penalty and send in proof of abatement. If you will be contesting it, you will get a chance for a hearing in front of a judge.
Keeping employees safe and healthy is vital for every construction company. Make sure your employees are properly trained and know the safe way to perform their duties.
