Defense of OSHA Citations
- October 17, 2018
- Posted by: thinkjcw
- Category: Safety Articles
One defense against OSHA citations is to show unpreventable employee misconduct. To
establish unpreventable employee misconduct, an employer must prove that it has:
1. established work rules designed to prevent the violation,
2. adequately communicated these work rules to its employees,
3. taken steps to discover violations, and
4. effectively enforced the rules when violations are discovered.
The action of the employee must represent a departure from a work rule that the employer
has uniformly and effectively communicated and enforced. If you are aware an employee
is not following safety procedures, yet you take no steps to prevent this action in the
future, you may have a hard time using the “unpreventable misconduct” defense against
How an OSHA inspector looks at the situation
During an OSHA inspection, compliance officers also are instructed to keep the
“unpreventable employee misconduct” issue in mind. To do this, the officers will look to
see if a violative condition was:
• Unknown to the employer; and
• In violation of an adequate work rule which was effectively communicated and
Example: An unguarded table saw is observed during an OSHA inspection. The saw,
however, has a guard which is reattached while the OSHA inspector watches. Facts that
the inspector may look at (and document) include:
• Who removed the guard and why?
• Did the employer know that the guard had been removed?
• How long or how often had the saw been used without guards?
• Did the employer have a work rule that the saw guards not be removed?
• How was the work rule communicated?
• Was the work rule enforced?