What To Do When You Receive an OSHA Citation
September – October 2001
Certified mail has arrived. The letter carrier isn’t Ed McMahon. Uh Oh! It’s a citation package from the USDOL/OSHA. What do you do? You glance at the paperwork to be sure it really relates to an OSHA inspection at one of your sites. You notice some rather heavy penalties. You are shocked, irate and feel as if you’ve been branded “corporate slime.” You try to convince yourself that you’ve been in lots of workplaces that are more dangerous than yours. You need this like a centipede needs sore feet. Options pop through you mind. You could get plastic surgery and move to Sri Lanka (no, you can’t get a good bagel or Mallomar there). You could write an angry letter to your U.S. Representative (sure, he/she will get back to you after the healthcare crisis, economy, drug problems and selection of a permanent boxing commissioner are all solved). Of course, you could hang an OSHA doll in your office and stick pins in it (it’s better than slugging the OSHA compliance officer, because the federal pen in Atlanta is no place to spend the holidays). You could throw away the citations (constituting your worst decision since you bought that red meat and onions from the street vendor with open sores). What should you do?
If you receive an OSHA citation, don’t panic and don’t ignore it. Don’t attempt suicide by lashing yourself to a chair and watching MTV for 24 straight hours. As legally required, post copies of the relevant pages at or near each apparent violation. Convene a meeting of your key staff, including safety director, maintenance chief, plant engineer, and any management rep who accompanied the compliance officer during any aspect of the inspection (of course you may wear several of these hats). Give each relevant person a copy of the documents. You should also consider having an authorized union rep in on the meeting. (Whoa! Am I nuts? Do I not understand “the way it works in business?” What a radical approach!) Let that good faith get started right away. Any handling of occupational safety and health matters deserves real teamwork. Any clear thinking union will appreciate you being “up front.” Your efforts should come back to reward you in better labor-management relations and put you in a better position to demonstrate your safety consciousness to the feds. It’s up to you.
Make every effort to identify each location, machine, process and document referenced in the allegations. Check the abatement dates (there may be several different ones possibly one day, after your receipt, for an impeded exit, and 6 weeks for a ventilation problem or an unguarded bank of machines). Note the proposed penalties. They are owed unless amended by the settlement agreement or contest outcome. Do not think they are only owed if you fail to abate.
If you feel the penalty is out of line, allegations are unfounded, practical abatement methods are not clear to you, or you question the legal protocol of the inspection, it might serve you well to call an attorney (but only if he/she is thoroughly familiar with the OSHA process; don’t call your brother-in-law, the patent law whiz, just because he’ll give you the family discount) or a safety consultant (only if he/she has extensive experience with the technical issues and OSHA procedures and policy), or both.
On the point of legal protocol, your chances are remote. If our only problem is meeting abatement dates, there are at least three ways to approach extensions. The OSHA office can fill you in on this, but never let an abatement date elapse without a prior call and letter to the office. If there’s any chance that you might be in jeopardy of entering a “failure-to-abate” status, the right attorney or safety consultant should be contacted immediately. The consultant will probably be in a better position to help you assure future compliance.
When you speak with a consultant, attorney or even an OSHA Area Director (or state equivalent), you may choose to gripe that the inspection stemmed from a complaint by a disgruntled employee, that inflation and foreign competition are destroying your business and that you aren’t too crazy about the IRS. None of this will help your case, but you may feel better. Make it quick and move on to real issues. The fact is that most OSHA folks can be reasonable. The fact is that they came, they videotaped and they cited. The fact is that, most likely (shoot me, not the editor) you deserved a good part of what is on the citation(s). So, the thing to do is proceed to damage control.
You should decide if you want to request an informal conference at the pertinent OSHA office. You have 15 working days (weekdays, not counting federal holidays), from the receipt of the citation, to take part in an informal conference. You may also contest within those 15 days (the date is not extended by a conference), sending the entire file to the USDOL Solicitors (or state equivalent); if the matter is not settled at that level, the next step is a formal proceeding before an administrative law judge. Informal conferences are not to be held if a contest is in effect. However, if you are even considering a contest, there is no good reason to pass up the informal conference. If you cannot reach satisfaction at the conference, you can still contest. “Satisfaction” generally means a signed settlement agreement amending the penalties, items and/or dates. Meanwhile, you will probably learn more about where OSHA might “move” on your behalf, and about their documentation. If you think you’ll just stroll into an informal conference, smile and be rewarded with a major penalty reduction and a few items deleted, think again. While with OSHA, I signed about 400 settlement agreements. OSHA’s been around for almost 30 years and most of the old employer excuses don’t count anymore. That is why you may want to be accompanied by a professional who understands how to deal with OSHA, in pursuit of a just and binding settlement agreement. Don’t BS, don’t yell, don’t filibuster and don’t say anything naughty about the OSHA person’s mama (see earlier reference). You can be respectfully assertive, as long as you are not boorishly aggressive. Be a good active listener, be determined and be sincere. Bring something to the table. There are many valuable and ethical negotiating tools and concepts, as well as defenses. Be thoroughly prepared to make specific and logical arguments.
You may have chuckled a few times, while reading my works. Everything must be put into proper perspective and your interaction with OSHA could prove to be a relatively inexpensive lesson, resulting in a safer, more healthful, more productive, and more profitable business venture. Nevertheless, please realize that dealing with OSHA is serious business and that is the way it should be. The best approach is to make every effort to avoid being vulnerable to a citation. Protect your workers (this is their right, not a privilege), as you would your family, and vitalize your facility to achieve and maintain compliance.
Rick Kaletsky specializes in hazard recognition, site inspection, and citation resolution. Prior to founding his firm in 1992, he worked for USDOL/OSHA for twenty years, serving as occupational safety & health specialist and assistant area director.
September – October 2001