Your Best Defense Against an OSHA Citation Starts Before OSHA Shows Up
When OSHA arrives at a jobsite or facility, one of the first concerns for many companies is simple: How do we avoid getting cited?
That is understandable. But by the time an OSHA inspection begins, many of the things that could help demonstrate that a company has an effective safety program should have already been happening.
A strong safety program does more than help prevent injuries and demonstrate compliance. It also creates a history of what the company has done to identify hazards, train workers, communicate expectations, monitor the workplace, and address problems.
That history can become particularly important if the company ever has to respond to an OSHA citation.
One example is OSHA’s recognition of an unpreventable employee misconduct defense in appropriate circumstances.
The concept is relatively straightforward. If an employee violates a safety requirement despite the employer having established the rule, communicated it, monitored compliance, and enforced it, an employer may have a basis to argue that the violation resulted from employee misconduct rather than a failure of the company’s safety program.
But there is an important catch: You cannot build this defense after the citation.
The evidence supporting it needs to exist beforehand.
A Safety Rule on Paper Is Only the Beginning
Imagine a manufacturing company has a requirement that workers follow specific lockout/tagout procedures before performing servicing or maintenance on equipment.
If an OSHA inspector discovers that an employee is working on equipment without properly applying the required energy-control procedures, the existence of a written rule is helpful. But it is only one piece of the bigger picture.
An obvious question is:
Did the company actually have a functioning system behind that rule?
A written safety manual sitting on a shelf does not demonstrate that a company actively manages safety. Effective safety rules should be specific enough to tell people what is required. They should reflect the hazards associated with the work and be consistent with applicable OSHA requirements.
There is also an important difference between saying something is recommended and establishing that something is required. Words such as “must” and “shall” communicate an expectation much more clearly than “should consider” or “when possible.”
But even a well-written rule is not enough.
People Have to Know the Rules
The next question is whether workers actually understood what the company expected them to do.
This is where training becomes important.
A company may have a detailed lockout/tagout procedure, but if the people responsible for applying it have never been properly trained on the procedure and the energy hazards associated with their work, the written policy has limited value. Training should address the hazards people are actually likely to encounter and the controls the company expects them to use.
For example, workers who perform equipment maintenance may need training on the company’s energy-control procedures, the types of hazardous energy they may encounter, and the specific steps they are expected to follow before beginning work.
Documentation matters here, too.
Being able to demonstrate that training occurred, who participated, what was covered, and when it occurred creates a much stronger record than simply saying, “We train our people.”
The Part Many Companies Miss: Looking for Violations
This is where a safety program can move from being a collection of policies to an actual management system.
It is one thing to establish a rule.
It is another thing to communicate it.
But what happens when nobody is watching?
An effective safety program needs a mechanism for identifying when established requirements are not being followed. That can include workplace inspections, safety observations, supervisor involvement, equipment inspections, jobsite audits, and other methods appropriate to the company’s operations.
For example, a company may have a lockout/tagout procedure and conduct required training. But does someone periodically observe maintenance activities to determine whether the procedure is actually being followed?
And if a problem is discovered, is it documented?
There is a significant difference between saying: “We regularly inspect our workplace.” and being able to produce documented inspections showing that someone was actively looking for safety issues.
The second provides evidence.
That distinction can become important when a company needs to demonstrate that its safety program is actively managed rather than simply documented.
Enforcement Matters Just as Much
There is another question that can become important when an employee violates an established safety rule:
What did the company do when it discovered the violation?
A company can have a disciplinary policy, but having a policy and actually using it are two different things.
If workers routinely violate established safety requirements and nothing happens, that can undermine the credibility of the company’s safety program.
Effective enforcement does not necessarily mean severe punishment for every mistake. Companies should have appropriate processes for addressing unsafe behavior and should apply their policies consistently.
The important point is that safety expectations need to be more than words on a page.
If a company tells workers that a particular safety procedure is mandatory but routinely ignores violations, it becomes much harder to demonstrate that the rule was genuinely expected and enforced.
Think of It as a Four-Part Safety System
The legal concept surrounding unpreventable employee misconduct generally focuses on four important elements:
- Establish the rule
Have clear safety requirements appropriate to the work and applicable hazards. - Communicate the rule
Make sure workers receive the necessary training and understand what is expected. - Monitor the workplace
Take reasonable steps to identify when safety requirements are not being followed. - Enforce the rule
Address violations through an appropriate and consistently applied process.
Notice something about that list.
It looks a lot like the foundation of a good safety management system. That’s not a coincidence.
These are the same basic activities that help organizations manage hazards before someone gets hurt, rather than simply reacting after an incident occurs.
Documentation Is More Than Recordkeeping
This is one of the biggest lessons companies can take from this concept. Safety documentation is sometimes viewed as administrative work that exists primarily to satisfy OSHA.
A better way to think about it is this:
Documentation is evidence that your safety program is actually being managed.
A training record can demonstrate that a topic was addressed.
An inspection can demonstrate that someone was looking for hazards.
A safety observation can demonstrate that supervisors or safety personnel were actively monitoring work practices.
A corrective action record can demonstrate that identified problems were addressed.
A signed toolbox talk can demonstrate that a safety topic was communicated.
A record of appropriate disciplinary action can demonstrate that established rules were enforced when necessary.
Individually, each record may seem insignificant. Together, they can tell a much larger story about how an organization manages safety.
Don’t Try to Reconstruct Your Safety Program After the Fact
One of the worst times to discover gaps in your safety documentation is after an OSHA inspector asks for it.
Trying to reconstruct months or years of training, inspections, observations, corrective actions, or other safety activities after the fact is difficult at best and impossible at worst.
The better approach is to make documentation a natural part of the safety process.
When training happens, document it.
When an inspection happens, document it.
When a hazard is identified, document what happened next.
When a safety rule is violated, address it through the company’s established process and maintain appropriate records.
This creates something much more valuable than a collection of files. It creates a history of your company’s safety efforts.
The Best Defense Is a Safety Program That Actually Works
There is an important distinction between having a safety program and managing safety through a program.
A company can have a 200-page safety manual and still struggle to demonstrate that its requirements are being followed.
On the other hand, a company with clear expectations, ongoing training, routine inspections, active supervision, corrective action, and consistent accountability is creating evidence of an operating safety system every day.
And that is ultimately the bigger takeaway. You should not build your safety program around the possibility that you will need to defend an OSHA citation.
You should build it because an effective safety program helps protect people, improve accountability, identify hazards, and manage risk.
The added benefit is that when an OSHA inspection does happen, you are not starting from scratch trying to prove that your company takes safety seriously.
Your day-to-day safety activities have already been creating the evidence, and that’s a much better position to be in.
Note: This article discusses general safety-management and legal concepts for educational purposes. The availability and applicability of any OSHA defense depends on the specific facts and circumstances involved. Organizations should consult qualified legal or safety professionals regarding their individual situations.