You've Been Cited, What Now?

Posted By DEMILEC || 20-Jan-2012

If you are cited for violations following an OSHA inspection, there are certain procedures that must be followed.

Here’s a brief overview of key issues. If you receive a Citation and Notification of Penalty from OSHA following an inspection:

  • You must post the citation (or a copy of it) at or near the place where each violation occurred to make employees aware of the hazards to which they may be exposed.
  • The citation must remain posted in a place where employees can see it, for 3 working days or until the violation is corrected, whichever is longer. (Saturdays, Sundays, and federal holidays are not counted as working days.)
  • You must comply with these posting requirements even if you contest the citation.
  • You also have to post the abatement certification documents (e.g., abatement certifications, abatement plans and progress reports) at or near the place where the violation occurred.
  • For moveable equipment found to be in violation and where the posting of violations would be difficult or impractical, you have the option to identify the equipment with a “Warning” tag specified in the abatement verification regulation, Title 29 Code of Federal Regulations (CFR) 1903.19(i).

As an employer who has been cited, you may take either of the following courses of action:

  • If you agree to accept the citation, you must correct the condition by the date set in the citation and pay the penalty, if one is proposed.
  • If you do not agree, you have 15 working days from the date you receive the citation to contest in writing the citation, the proposed penalty, and/or the abatement date.

Informal Conference and Settlement

Before deciding to contest the citation, you may request an informal conference with the OSHA area director within the 15 working day period to discuss any issues related to the citation.

Employee representative(s) have the right to participate in any informal conference or negotiations between the regional administrator or area director and the employer. OSHA will, therefore, inform them of an informal conference or contest.

If you request an informal conference, you can use this opportunity to do any of the following:

  • Obtain a better explanation of the violations cited
  • Obtain a more complete understanding of the specific standards that apply
  • Negotiate and enter into an informal settlement agreement
  • Discuss ways to correct violations
  • Discuss issues concerning proposed penalties
  • Discuss proposed abatement dates
  • Resolve disputed citations and penalties, thereby eliminating the need for the more formal procedures associated with litigation before the Occupational Safety and Health Review Commission
  • Obtain answers to any other questions you may have

Compliance Problems

OSHA encourages you to take advantage of the opportunity to have an informal conference if you foresee any difficulties in complying with any part of the citation. Please note, however, that an informal conference must be held within the 15-working-day Notice of Intent to Contest period and will neither extend the 15-working-day contest period nor take the place of the filing of a written notice if you desire to contest.

If you agree that the cited violations exist, but you have a valid reason for wishing to extend the abatement date(s), you may discuss this with the area director in an informal conference. He or she may issue an amended citation that changes the abatement date prior to the expiration of the 15- working-day period without your filing a Notice of Intent to Contest.

When Citation Becomes Final

If you do not contest within 15 working days, your citation will become a final order not subject to review by any court or agency. After this occurs, the OSHA area director may continue to provide you with information and assistance on how to abate the hazards cited in your citation, but may not amend or change any citation or penalty, which has become a final order. The area director may only advise you on abatement methods or extend the time you need to abate the violation.

Types of OSHA Citations and How Much They Cost

OSHA issues different types of citations, depending on the nature and severity of the violation. Penalties are proposed based on the type of violation.

If you’re cited for OSHA violations following an inspection, penalties may vary depending on the type of citation. Note, however, that in settling a penalty, OSHA says it has a policy of reducing penalties for small employers and those acting in good faith.

Willful

A willful violation exists under the OSH Act where an employer has demonstrated either an intentional disregard for the requirements of the Act or a plain indifference to employee safety and health. Penalties range from $5,000 to $70,000 per willful violation. If an employer is convicted of a willful violation of a standard that has resulted in the death of an employee, the offense is punishable by a court-imposed fine or by imprisonment for up to 6 months, or both. A fine of up to $250,000 for an individual, or $500,000 for a corporation, may be imposed for a criminal conviction.

Serious

Section 17(k) of the OSH Act provides that “a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” OSHA may propose a penalty of up to $7,000 for each violation.

Other-Than-Serious

This type of violation is cited in situations where the accident/incident or illness that would be most likely to result from a hazardous condition would probably not cause death or serious physical harm, but would have a direct and immediate relationship to the safety and health of employees. OSHA may impose a penalty of up to $7,000 for each violation.

De Minimis

De minimis conditions are those where an employer has implemented a measure different from one specified in a standard, that has no direct or immediate relationship to safety or health. These conditions do not result in citations or penalties.

Failure to Abate

A failure to abate violation exists when a previously cited hazardous condition, practice or non-complying equipment has not been brought into compliance since the prior inspection (i.e., the violation remains continuously uncorrected) and is discovered at a later inspection. If, however, the violation was corrected, but later reoccurs, the subsequent occurrence is a repeated violation. OSHA may impose a penalty of up to $7,000 per day for each violation.

Repeated

An employer may be cited for a repeated violation if that employer has been cited previously, within the last five years, for the same or a substantially similar condition or hazard and the citation has become a final order of the Occupational Safety and Health Review Commission (OSHRC). A citation may become a final order by operation of law when an employer does not contest the citation, or pursuant to court decision or settlement. Repeated violations can bring a civil penalty of up to $70,000 for each violation.

Additional violations for which citations and proposed penalties may be issued upon conviction:

  • Falsifying records, reports or applications can bring a fine of $10,000 or up to 6 months in jail, or both.
  • Violations of posting requirements can bring a civil penalty of up to $7,000.
  • Assaulting a compliance officer, or otherwise resisting, opposing, intimidating, or interfering with compliance officers while they are engaged in the performance of their duties is a criminal offense, subject to a fine of not more than $5,000 and imprisonment for not more than 3 years.

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