You have an employee who is seriously injured in the workplace. The Occupational Safety and Health Administration (OSHA) investigates the incident and issues one or more citations and proposes one or more penalties. OSHA also will direct you to post the notice of violation so that all of your employees can see it, and give you a hard deadline by which the cited condition must be abated. What do you do next? You contact OSHA and try to resolve the citation and penalties, right? Maybe.
The maximum penalties for serious and other than serious violations is $12,675 per violation and $126,749 per violation for willful or repeated violations. For failure to abate, the penalty is $12,675 per day beyond the abatement date. The penalties can really add up fast.
As part of the citation packet, you probably will receive an invitation to engage in an informal conference with OSHA to resolve the citation. OSHA also may make a preliminary offer to reduce the penalty and enter into an expedited settlement agreement.
Considering the potential expenses involved in contesting the OSHA citation, the offer to engage in an informal conference with OSHA to reduce the penalty sounds appealing. Even the initial offer from OSHA to reduce the proposed penalties is cause for optimism. However, as part of any informal settlement, whatever you ultimately agree to with OSHA regarding the cited condition will become a final order not subject to review by any court or agency. This means that if there is a future incident in your workplace you may be cited for a willful or repeated violation and hit with the substantially higher penalty. Then there is the issue of the admissibility of OSHA citations in subsequent litigation. In Texas there is case law establishing that OSHA standards represent the standard of care.
And to make the decision more complex than it needs to be, OSHA only gives you 15 business days to engage in the informal settlement process. Considering (1) the ramifications of admitting to a violation and having a record of the violation on future citations and penalties; and (2) the potential impact of the citation on subsequent litigation, 15 business days is not a whole lot of time to make a reasoned decision.
So you fight it, right? Keep in mind that the citation from OSHA is not conclusive. The citation is what OSHA hopes to prove by a preponderance of the evidence before an administrative law judge. And yes, OSHA tends to do very well at the administrative level. However, once the case moves to the appellate level, the results tend to even out somewhat. Fighting OSHA can be time-consuming and expensive, but it may be the best option for you when you consider the impact that settling with OSHA may have on the bigger picture down the road.