Avoiding OSHA Citations: The Best Defense Is (Also) a Good Offense

In the unfortunate circumstance when an employer receives an OSHA citation, it is comforting to know that numerous procedural and substantive legal defenses exist to limit liability. Of the substantive defenses, one of the most effective is known as the “unpreventable employee misconduct” defense. If successful, it can lead to the outright dismissal of the OSHA citation.

While this defense can obviously relieve the immediate headache of the citation, it cannot and should not replace the practice of making worker safety the number-one priority. Indeed, this defense will only be successful if adequate safety practices already existed at the workplace at the time when the citation was issued.

In this sense, the unpreventable employee misconduct defense also acts as a template for preemptively establishing a safer workplace. By taking action before a citation is ever issued to satisfy all elements of the unpreventable employee misconduct defense — the four things an employer must demonstrate if a contested citation were to go before an OSHA administrative law judge or, later, the Occupational Safety and Health Review Commission — an employer can significantly minimize the risk of ever receiving a citation in the first place.

For a more in-depth analysis of the unavoidable employee misconduct defense, please see my recent article in IndustryWeek, “Avoiding OSHA Citations: The Best Defense Is (Also) a Good Offense.” A complete copy of the article can be found here. This article offers practical advice on establishing worksite safety practices that comply with the elements of this defense. This not only minimizes the risk of a citation by making worker safety the number one priority at the workplace, but also paves the way for the successful use of this defense in the rare instance a citation is given.


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