The Occupational Safety and Health Administration (OSHA) and Mine Safety and Health Administration (MSHA) share many similarities.
Both are part of the U.S. Department of Labor and tasked with regulating workplace safety for employers across the country. But the way the two agencies regulate is not identical, nor is the process for employers to contest enforcement actions issued by OSHA or MSHA.
If a company receives enforcement action from OSHA or MSHA, it has the right to challenge the citations, items or orders issued by the agency. There are many reasons to contest citations issued during or at the close of an inspection or investigation.
The simplest reason to contest is that the company does not believe it violated the cited standard or regulation, which the agency alleges it did. But beyond seeking to have the enforcement vacated or withdrawn, the enforcement can be modified or reclassified to protect the company moving forward, and the associated financial penalties can be reduced.
While the processes share some similarities, certain distinctions must be understood for companies to contest OSHA and MSHA enforcement effectively. For this discussion, we will focus on contesting federal OSHA enforcement. In my June column, we will review the MSHA contest process.
Beware, if you are working in a state with a state-run occupational safety and health program, the process may not be identical to federal OSHA. If you have state-specific questions, feel free to contact me.
Contesting OSHA enforcement
The timing of contesting OSHA citations is based on the conclusion of the investigation.
OSHA has six months to complete an investigation and issue an enforcement action against a company if it finds evidence of noncompliance. Near the end of the investigation, OSHA will hold a closing conference. At this meeting, the compliance, safety and health officer typically reviews their findings and informs the company whether OSHA is planning to issue enforcement.
Following this meeting, if OSHA issues citations to the company, the agency will serve the company with copies of the citations and assessed penalties by mail or in person.
Once that citation packet is delivered, the company will have 15 business days to request and hold an informal conference, if it chooses to. At the informal conference, the company can negotiate with OSHA to have citations withdrawn or modified, or to reduce a penalty. The company can also negotiate with OSHA to abate the cited conditions.
If a company chooses to hold an informal conference, it is not required to settle with OSHA unless it reaches an agreed-upon term.
Regardless of whether the company holds an informal conference with OSHA, the deadline to formally contest the citations before the Occupational Safety and Health Review Commission (OSHRC) is 15 business days from receipt of the enforcement documents. The companies mustn’t miss this deadline if they want to contest. Even if the informal conference just occurred and the company and OSHA are still discussing a settlement, the notice of contest has to be filed on time.
After filing the notice of contest, the company can challenge the citations through the legal process. This includes continued opportunities to discuss settlement, litigating the enforcement before the OSHRC commission and its administrative law judges, and access to the federal court system for appeals up to the Supreme Court.
Companies are allowed to represent themselves at informal conferences and even in formal contests and litigation before the OSHRC. Still, I recommend engaging with an experienced workplace safety expert.
Some companies view OSHA and MSHA enforcement as just part of doing business, but I urge you to avoid this generic approach.
Accepting unwarranted or improper enforcement can lead to more severe enforcement and penalties from agencies during subsequent inspections and investigations, hinder a company’s ability to bid work and have far-reaching impacts on your company, as well as your industry if a novel citation is not challenged.
Even if the fine is immaterial, evaluate each citation or item individually, and if you feel that it is inaccurate or misplaced, consider contesting.
Nick Scala is an MSHA/OSHA workplace safety partner at Conn Maciel Carey LLP, and chair of the firm’s National MSHA Practice Group. He can be reached nscala@connmaciel.com.
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