When OSHA Visits, Part 2: Managing The Aftermath
So OSHA came to visit your facility. They poked around, asked questions, and finally left. You want to breathe easy now… but this is actually the time when companies often make their most expensive safety-related mistake.
When you get the official citation, you have only a short window (15 working days) to formally contest it, if you choose to, so don’t take too long to think about it! And be aware that asking for an “informal conference” doesn’t give you any extra time. The clock is still ticking for you to take your next steps within the short time period allowed.
The government will often offer you a deal: if you agree not to fight the citation, they’ll reduce the penalty amount. This is tempting, but look closely at the offer before you accept. Do not optimize for the dollar amount, which is a short-term solution. Instead, look to negotiate down a category (from “serious” to “other-than-serious”), even if your initial financial payment will be bigger. That’s because a “serious” or “willful” violation on your record can get you into much bigger trouble down the road. A repeat violation gets multiplied 10x, and the worst ones will land you on OSHA’s watch list and cause them to come back and check you out again (and again). Think about the long-term implications before accepting any offer. And remember, My HR Guy is here to help advise in exactly these types of situations!
Now it’s time to start fixing the issues.
Every citation comes with an “abatement date,” a deadline to correct the hazard. Our tip: move FAST to start implementing fixes. OSHA considers “good faith” in how it calculates penalties, so the faster you move to fix these things, the more leverage you have in negotiating down the fees. Even if you plan to contest the citation, try to fix the issue anyway to build goodwill. As we suggested in our last post, if you can fix something on the spot (right in front of the OSHA inspector), that’s a great way to start the goodwill right away.
But it’s not enough to just fix the issue; you have to prove that you fixed it. Typically, you need to certify this in writing, with data such as the date and method of the fix, photos, training records, inspector certifications, etc. If you fix the hazard but don't file the certification promptly, you can still get hit with failure-to-abate penalties! And by the way, these failure-to-abate penalties aren’t a one-time thing. They stack up for every day the hazard remains uncorrected, and can snowball into a HUGE amount over time.
If you legitimately can’t meet the abatement deadline (you can’t get the parts, the weather won’t cooperate, etc.), file a Petition for Modification of Abatement (PMA) BEFORE the deadline to explain what’s going on, and outline what you’ll do in the meantime to keep employees safe as you work towards a permanent fix. Don’t wait until after the deadline to communicate the delay.
What happens next?
Once you’ve fixed everything and cited and submitted all the appropriate paperwork, there are three possible paths:
You’re done! This is the best-case scenario, where you’ve corrected it, certified it, paid the penalty, and the case is now closed. You may never hear from OSHA again, aside from a potential follow-up inspection to make sure the correction is still in place.
You’re on the watch list. If you had serious issues, like willful violations, repeats, or fatalities, you may end up in OSHA’s Severe Violator Enforcement Program (SVEP). This isn’t just a one-time fine but a status, which leads to years of mandatory follow-up inspections and escalated attention. Do whatever you can during the negotiations to keep from having your issues classified as Serious so you can avoid this fate.
You get handed off to another agency. OSHA doesn’t work alone. If the inspector sees something that relates to another agency, such as an environmental issue, they can report you to another governmental agency for follow-up. The EPA alone accounts for five of OSHA’s roughly 45 partner agencies, and they track and refer violations to each other regularly. An OSHA inspector's observations could also send you to a state or federal agency, local law enforcement, or a health department. This risk is yet another reason to guide the OSHA inspector to a semi-private room where you provide all the info they could possibly need related to work safety, instead of letting them run rampant through your facility to find whatever they want.
If just reading about this makes you queasy, don’t worry. My HR Guy is here to help you at every step. We love to start with businesses before OSHA has you on the radar, to get you fully compliant and ensure a smooth visit, but we’re also around to prep you when OSHA shows up, and help you manage the citation afterwards. It’s all standard with a My HR Guy retainer account, so reach out if you want help!
