Enforcement and Inspection

Contesting an OSHA Citation? Common Affirmative Defenses

Yesterday, we looked at the two categories of defenses an employer can use in contesting an OSHA citation. Today, we’ll look at three common affirmative defenses that employers can use to argue that, even though a violation occurred, the employer is not responsible.

Any defense you wish to argue must be listed in your notice of contest. If you don’t list it, you can’t use it. If you raise an affirmative defense, the judge may require you to provide certain documents supporting your defense before the hearing. For example, if you claim that an employee acted in a way that is forbidden by your company’s written work rules, you will probably be required to provide a copy of those rules.

Here are three common affirmative defenses you might employ against an OSHA citation, and what you must demonstrate in order to make your case.

The Unpreventable Employee Misconduct Defense

When you argue that a violation occurred because of employee misconduct that you could not have prevented, you must demonstrate that:

  • You did not know about the violation, and
  • The employee violated a work rule that would have prevented the violation, and
  • The employee knew of the work rule, because it had been adequately communicated, and
  • The work rule had been enforced in the workplace.

If you fail to establish any of these four things, your defense will fail.


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The Impossibility Defense

When you argue that you did not comply with a standard because compliance was simply not possible, you must demonstrate that:

  • Compliance with the standard’s requirements is functionally impossible, or would prevent workers from completing required work, and
  • There are no feasible alternative means of providing equivalent protection for workers.

If you fail to establish either of these things, your defense will fail.


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The Greater Hazard Defense

When you argue that complying with the standard would have created a greater hazard than noncompliance, you must demonstrate that:

    • Compliance with the standard would result in greater hazards to employees than noncompliance, and
    • There are no alternative means of employee protection that would be as effective, and
    • Applying for a variance from the standard would be inappropriate.

If you fail to establish any of these things, your defense will fail.

Do you feel like you could use even more help defending yourself against an OSHA citation? No worries; BLR has you covered.

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