If you’ve been issued an OSHA citation, you may feel that it was undeserved and wish to contest it. But if you’re going to contest, you’ll need to give a reason. Keep reading for a discussion of the defenses you can make against an OSHA citation.
Your grounds for contesting the violation will fall into two general categories. You may claim that no violation occurred, in which case, OSHA will have to prove that it did. Or, you may acknowledge that the violation occurred, but claim that you are not responsible —this type of defense is called an affirmative defense, and there are specific affirmative defenses that are recognized by the Occupational Safety and Health Review Commission. We’ll talk about both types of defenses and a few of the more common affirmative defenses in today’s article and in tomorrow’s as well.
No Violation Occurred
Generally, the burden of proving that an OSHA standard was violated falls on OSHA. If you feel that a violation did not occur, you can directly contest the violation. You should be able to provide evidence demonstrating that no violation occurred. For example:
- If you were cited for failing to train workers under the requirements of a specific standard, you can contest the citation and provide written documentation of the training you provided.
- If you were cited for failing to comply with machine guarding standards, you might offer evidence demonstrating that there was no violation because the machine was properly locked out during a maintenance operation when OSHA observed it.
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Affirmative Defenses
It might be that OSHA cited you for a violation and that the violation did occur, but that you do not feel that you should be held responsible for it. In order to contest a citation in such a case, the burden of proof will fall on you (the employer) rather than on OSHA, and your defense falls into the category of an affirmative defense. An affirmative defense is simply a defense which, if established by the employer, will excuse the employer from a violation that has otherwise been proved by OSHA.
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The classic example of an affirmative defense in criminal law is self-defense. When a defendant in a murder trial argues that the murder was committed in self-defense, the defendant admits up front to having killed the other person. The defendant simply argues that he is not liable for murder because he acted in defense of his own life. In such cases, the accused is responsible for proving his defense, because the prosecution’s assertion—that he killed another person—is not directly at issue.
Tomorrow, we will look at three common affirmative defenses employers use against OSHA citations: the unpreventable employee misconduct defense, the impossibility defense, and the greater hazard defense.