Construction Law Blog

An OSHA inspector just completed an inspection of your worksite. What steps should you take now?

1.        Comply with posting requirements.

Post a copy of the citation at or near the site of the violation for 3 working days, or until the violation is corrected, whichever is longer. Saturdays, Sundays and state holidays do not constitute working days. Citations must be posted even in the event they are contested.

2.        Respond in a timely fashion.

If you chose to contest the citation, you must do so within 15 working days. The notice of contest must be in writing. Importantly, an informal conference or request for an informal conference will not extend this time period. In the event you choose not to contest any citation, you must pay any applicable penalties within this 15-day period and ensure that you comply with any abatement requirements. 

3.        Be aware of potentially applicable penalty reductions.

Some potentially available penalty reductions might include reductions based upon the size of the employer, reductions for good faith, and reductions relating to the employer’s history of past violations.

4.        Consider whether to contest any citations.

Contesting a citation and proceeding all the way through litigation may involve significant time and resources. Consider the time and resources required to contest a citation, the severity of any citation, the proposed penalties, the burden of any necessary abatement, the possibility for repeat or willful violations, and any impact such a violation might have on the employer’s ability to obtain work. Legal counsel can be helpful when evaluating the pros and cons of contesting a citation.

5.        Comply with abatement requirements.

Be aware of what abatement requirements apply, particularly in a state-plan state (like Virginia) that may have more stringent abatement requirements. Failure to comply with any abatement requirements can result in citations for repeat or willful violations or additional penalties for failure to abate.

6.        Do NOT retaliate against employees!

Under no circumstances should an employer wrongfully retaliate against any employees who either filed a complaint or who were interviewed by the inspector. Terminating, threatening, harassing, or otherwise taking adverse action against employee complainants or interviewees can result in additional lawsuits and inspections and hefty penalties.  However, this does not mean that an employer should abandon its disciplinary policy. On the contrary, an employer must ensure that it effectively, consistently and promptly enforces its safety policies, and this includes disciplinary policies. Those employees who violated applicable safety standards should be promptly, consistently and appropriately disciplined. The employer should document any and all disciplinary action.