While companies should always be prepared for an unannounced inspection from OSHA, appropriately dealing with citations, once issued, can be time consuming and expensive if not promptly and suitably addressed. If handled incorrectly, a relatively minor OSHA citation could jeopardize the future of a company due to the potentially excessive fines and penalties.
An OSHA inspection can be either unannounced or in connection with a reportable injury. These visits can either be a wall-to-wall inspections of a company’s entire facility or inspections only of relevant company operations. The inspections can take days or even weeks, depending on the size of the company’s facility and the complexity of its operations.
During the inspection (referred to as a “walkaround”), the compliance officer will be looking for safety and/or health hazards and will expect that conditions are typical and have not been halted or modified because there is an inspection occurring. Additionally, the compliance officer may activate or use certain equipment to measure noise, dust, fumes, or other hazardous exposures. The compliance officer is also supposed to bring apparent violations to the attention of employer and employee representatives at the time they are documented. Companies must be sure to have a representative accompany the compliance officer for the entirety of the inspection and take detailed notes on all actions taken by the officer.
Upon the completion of an OSHA inspection, the OSHA compliance officer will hold a close out meeting to discuss his/her findings from the inspection. During the close out meeting, the compliance officer will advise a company representative of all conditions and practices which may constitute a violation. Companies should expect to be given specific rules and regulations that have been potentially violated. Companies should also keep in mind that the compliance officer does not have the authority to issue citations or penalties. This authority rests with the OSHA Area Director, and therefore, if a company has a violation, the citation will be issued at a later date. Generally, these citations must be issued within six months of the inspection, but will likely come much sooner.
Upon receiving a citation, companies must ensure that citations and all accompanying documents are read immediately and thoroughly. Time is of the essence when dealing with OSHA citations, and there likely will be different deadlines for different actions that must be taken. Notably, there will be a deadline for when the company must contest the violation, if it chooses to do so. There will also be an abatement deadline, which will mark the date by which that the company must have the violations fixed. Additionally, companies must be sure to check for inaccuracies in the citations. This is also the time for a company representative to inform the corporate office as well as company attorneys of these violations.
Next, OSHA requires that the citation be posted immediately at or near each violation. The citation must remain posted until the violations have been abated, or for 3 working days, whichever is longer. The dollar amount of penalties is not required to be posted and may be marked out or covered up prior to posting.
An employer then must determine whether it wants to contest the violation it has been cited for. If a company decides to contest the violation, it must inform its OSHA Area Director in writing that it intends to contest the citation within 15 working days after receipt. If the company fails to inform the OSHA Area Director of its intention to contest the citations, proposed penalties become final.
If it is determined that it is not in the company’s best interest to contest the violation, then the company must resolve the cited problems before the abatement date that is included on the citation or risk fines that accumulate for every day the issue has not been resolved. OSHA requires that it be informed of resolution of issues leading to citations through an abatement certification. An abatement certification generally contains an inspection number, citation number, and a brief description of the corrective action taken.
Furthermore, if a company does not plan to contest a citation, it must pay the citation with 15 working days of receipt of the citation. The citation material will provide specific guidance on payment. If the 15-day deadline is not met, late fees will be assessed and will accrue daily.
It is important to know that depending on the violation for which a company is cited, OSHA fines can potentially be exorbitant. In fact, the civil penalties relating to OSHA violations have recent been increased 78% and a single violation now has the potential of carrying a fine of up to $124,709. This makes it that much more important that a company react quickly and strategically when dealing with a violation. In addition, because proper investigation of evidence is critical prior to an inspection, if a company becomes aware of any potential inspection by OSHA, especially in connection with an injury, counsel should be notified immediately. If you have any questions on how to handle an OSHA citation, please contact Kevin Coghill at Setliff & Holland at (804) 377-1273.