Should you defend an OSHA citation? What will it cost you?

The Occupational Safety and Health Administration (OSHA) has vowed to be more aggressive in enforcing workplace safety rules. What if OSHA fines your company? Should you fight it?

It’s a question upper managers find themselves facing after being hit with an OSHA violation.  And with increased enforcement on the way,  even more executives will be facing the issue soon.

So how best do you make that decision? What are the factors to be considered when deciding whether to fight an OSHA fine?

First things first, experts say, is that the final decision goes far beyond the actual cost of the fine.  Some citations start out at only a couple thousand dollars and, if the firm is cooperative, OSHA routinely knocks those down to just a couple hundred bucks without even being asked.

So, for a few hundred dollars, shouldn’t you just write the check and let it go?

Not without first talking to an attorney experienced in OSHA issues. The amount of the proposed fine really shouldn’t be among the first considerations.

Instead, a key question to ask is, “How much will it cost to fix the problem?” OSHA calls it abatement, and almost every paid citation with a pledge from the company to address a workplace “hazard” so that it can’t happen again.

In many instances, that’s simple enough. But not all! Sometimes the costs of correcting a hazardous condition can be substantially more expensive than the proposed penalty.

What else goes into deciding whether to pay an OSHA fine?

Here are five key things to consider.

1. What is the cost of abatement and the techological feasability of doing it? In some cases and in some industries, those costs can be substantial.

2. Could the situation occur again? Repeat citations can get very expensive. So, if you agree to pay an OSHA citation and then the offense somehow re-occurs (which is quite possible given the renewed OSHA emphasis from the Obama administration) then where are you?

3.  Could the safety offense also be a crime? In truly egregious situations, managers and executives have received jail sentences following a workplace accident.

4. Is there other pending litigation your firm is involved with that could be affected by your essentially “pleading guilty” to an OSHA violation? If so, how might that litigation be affected?

5. Lastly, is there a good defense to the citation? For instance, an often used defense is “unexpected or unpreventable employee misconduct.” And OSHA fines can be dismissed on a number of technicalities, for instance it wasn’t filed in timely manner or the citation is too vague.

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