Should your OSHA citation be dismissed

By: Ray Chishti

Publication: Employee Safety Management Today

Date Posted: 02/02/2021

Affirmative defenses: Proving to OSHA your citation should be dismissed

An affirmative defense is when a defendant (person being accused of doing something wrong) agrees they did something wrong but gives a fact or legal argument that legally justifies their wrongful actions. This argument is most often used in civil or criminal cases, but did you know that it can also be used at an OSHA hearing? In this situation, an affirmative defense could excuse an employer from a violation that has otherwise been documented by the compliance officer during an inspection. It may sound relatively simple but proving your case may be easier said than done.

Burden of proof with OSHA citations

Employers have the burden of proving any affirmative defenses. Also, be aware that compliance officers are instructed to anticipate when an employer is likely to raise an argument supporting such a defense during an inspection. As such, the officer will preliminarily gather evidence to rebut an employer’s potential affirmative defense argument. Remember to take notes of what the inspector looks at and take pictures of the same things, and from the same angles, the inspector does.

Nonetheless, OSHA has provided three common ways to help an employer prove an affirmative defense case.

Proving your OSHA citation case

According to OSHA, there are three affirmative defense arguments:

  • Unpreventable employee or supervisor misconduct or “isolated event,”
  • Impossible or unfeasible compliance, and
  • Greater hazard.
Misconduct

To establish that an employee or supervisor was responsible for the violation due to misconduct or that it was merely an “isolated event,” OSHA says that employers must show all of the following elements when presenting their case:

  1. There was/is an established work rule adequate to prevent the violation;
  2. There was/is effective communication of the rule to employees;
  3. There were/are methods for discovering violations of work rules (e.g., inspections); and
  4. There was/is effective enforcement of rules when violations are discovered (i.e., corrective action).

It’s important to note that the compliance officer will document whether these elements are present at the inspection time, including if the work rule at issue follows the standard’s requirements addressing the hazardous condition observed.

Compliance

If compliance with the requirements of a standard is impossible or would prevent the performance of required work, you may have an affirmative defense. However, OSHA says that an employer must also have taken reasonable alternative steps to protect employees. If not, then there must be no alternative means of employee protection available.

Greater hazard

If compliance with a standard would result in a greater hazard(s) to employees than would noncompliance, you may have an affirmative defense. Like the impossible or infeasible compliance argument, employers must also demonstrate the alternative protective measures to protect the employee. If not, then there must be no alternative means of employee protection available.

If you intend to utilize one of the above three affirmative defense options, it’s critical to understand what an officer will document to effectively ensure that these issues are addressed before a violation is observed.


Key to remember: Affirmative defenses are often used in civil or criminal cases, but remember that they can also be used at an OSHA hearing.

About the author
Ray Chishti - EH&S Editor

Ray is an editor at  J. J. Keller & Associates, Inc. and has over 12 years of EH&S experience in a variety of industries, including EPC projects, fossil fuel power plants, gas distribution and transmission, and electrical transmission work.

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