Printed from

Employers have little flexibility in challenging OSHA citations: Attorney

Posted On: Aug. 17, 2022 6:55 AM CST


Employers that want to challenge federal citations for workplace safety violations by claiming employee misconduct need to avoid common pitfalls, according to an attorney who specializes in workplace safety on behalf of employers.

Michael Rubin, New York-based chair of the national OSHA and Worksite Safety practice group at defense firm Goldberg Segalla LLP led a webinar Tuesday tackling the common defense when companies face fines following an Occupational Safety and Health Administration investigation.

“That your employee should have known better, that's sort of a defense. But OSHA will say, ‘Well, how should the employee have known better? What training did you give to the employee? Did they need any retraining?’ That's just going to bring on a host of questions,” Mr. Rubin said.

Employers that want to challenge citations using the “unpreventable employee misconduct” defense need to follow certain protocols based on case law, he said.

“With this defense, you can actually go deeper and effectively say, despite doing everything correctly as management, your employee did not follow the directives and therefore … you should prevail,” he said. “It's basically a winning meritorious defense.”

One of the best ways an employer can prove it had an adequate safety program in place and enforced it is through consistent documentation of workplace training and disciplinary measures, he said. He noted that the following elements in case law must be met: The rule must be set by the employer; it must be communicated to employees; the employer must take steps to discover violations of its own rules; and it must show that the rules have been effectively enforced.

“This is the backbone of a health and safety program,” he said. ”You have to have a disciplinary program. You need to have a record that this is a real thing and you enforce it.”

Disciplinary “write-up” forms, for example, can be evidence for an OSHA defense that the employer has an effective program in place and that it takes note when an employee doesn’t follow rules, Mr. Rubin said.

“Even if you think you are doing all this stuff, think about how you can enhance what you are doing,” he said. “Are there any gaps? Time passes, your operation might change, or you have new people coming in.”

Tuesday’s webinar came amid stepped-up federal workplace safety programs aimed at curbing fall protection and trenching violations.