With the strong bonds that form among construction project teams, workers looking out for each other helps keep safety foremost in everyone’s mind. But sometimes, even the very best intentions alone can’t prevent an occasional misstep—a forgotten hard hat, a sagging rope line—which can and often does result in an OSHA citation. These regulatory reminders can bring unfortunate consequences: penalties, higher insurance premiums, potential worker injury claims, loss of bidding eligibility, loss of reputation and even public embarrassment, because citations are published on OSHA’s website.

Due to citations’ adverse effects, contractors have incentives to minimize them. They can do this by asserting available defenses, because a citation is only an alleged violation, not a confirmed one. But making defenses available begins well before a citation is issued, well before OSHA arrives to a construction site and well before a violation even occurs.
Instead, contractors’ ongoing safety programs should incorporate the necessary measures to preserve OSHA citation defenses in three key areas: lack of employee exposure, lack of employer knowledge and impossibility.

EMPLOYEE EXPOSURE

To sustain a citation against an employer, OSHA must not only identify an applicable standard that the company violated but also show that the violation exposed employees to hazards and risk of injury. Absent evidence of actual exposure, OSHA often makes this showing by asserting that performing job functions necessarily exposes employees to the cited hazard.

An employer can counter this exposure element by showing that it could not have reasonably predicted that employees’ work would bring them to areas where they would encounter hazards from a violation. For example, in a recent court challenge, a metal fabricator successfully contested a citation alleging insufficient machine guarding by showing that employees’ work did not realistically involve going near enough to unguarded parts of the machine to risk injury.

How do contractors make a similar showing? By demonstrating that employees were told in almost every possible way not to enter areas or conditions where a hazard exists. Resources to make this showing include:
detailed documentation of workplace procedures that exclude working in a hazard area; records of employee training on workplace procedures with dates, times, locations, trainer, curriculum and materials used, and employees attending; photos and other records of physical barriers to potential hazards; records of communications about “off-limits” areas and procedures meant to prevent exposure; documented audits and daily safety monitoring; and disciplinary action against employees who violate rules, policies and procedures meant to keep employees away from hazards.

By using these methods, employers create an expectation that employees should not encounter situations that would expose them to hazards or dangers. By having these methods documented, an employer has the evidence to prove, not just claim, the alleged violation did not expose any employee to harm or risk of injury.

EMPLOYER KNOWLEDGE

For OSHA to convert an alleged violation into an enforceable penalty, it must show that the employer knew of the alleged violation and hazard created. To do so, however, OSHA does not necessarily need the employer’s actual knowledge. Instead, the agency can meet the employer-knowledge requirement by showing that the employer could have known of the hazardous condition with the exercise of reasonable diligence—in other words, the employer should have known about the hazard if it was paying proper attention.

So, to refute the employer-knowledge requirement and thus defeat the citation, an employer just needs to show that, despite taking all reasonable measures to pay proper attention to worksite conditions, the hazard escaped managers’ notice. An employer demonstrates those reasonable measures with records showing that managers: prepared written safety plans for all employees performing any work involving exposure to identified hazards; communicated job hazards and responsive measures to employees in writing through documents such as job-hazard analyses and written safety plans; discussed potential job hazards and job-specific safety requirements with employees by reviewing job hazard analyses and written safety plans; provided formal and informal training necessary for employees to follow any safety plan measures; regularly inspected worksite and equipment, identified potential and actual hazards and communicated appropriate safety policies; and monitored and supervised employees through regular and unplanned workplace observations, then recorded results.

The necessary records to demonstrate employers took these measures include manager and supervisor daily reports, jobsite logs or journals, written memorandum and sign-in sheets for safety meetings. These materials help make the difference between an employer telling OSHA it did all it could to know of a hazard and actually showing that.

IMPOSSIBILITY

In addition to showing that OSHA failed to satisfy the required elements for a violation, employers can seek to excuse a violation by showing that complying with the cited standard makes it infeasible for the business to function. This infeasibility defense has a high standard. The employer must show that compliance made it either technically impossible, not just difficult, for the employer to perform its operations or economically impossible, not just difficult, to have a sustainable business.

To demonstrate this impossibility, the employer must show that it explored all reasonable alternative steps to protect employees from the hazard the standard addresses and determined that no alternative feasible means existed. Supporting this conclusion comes from records of:
all safety measures considered and attempted to comply with the regulation or standard; all studies, investigations and analyses undertaken to find a way to make compliance physically possible; all studies, investigations and analyses conducted to compare the safety of compliance versus noncompliance; all alternative operations or methods investigated and attempted to protect employees from the hazard that the standard addresses; and all financial cost analyses performed assessing what complying with the standard would require.

Not only should an employer have these investigations documented, but they should also have competent outside professionals conduct them, making as detailed a study and analysis as possible, as infeasibility claims attract great scrutiny from both OSHA and courts.

CONSCIENTIOUS FOCUS

Many of the above measures—including job hazard analyses, safety meetings and daily inspections—are well-known to contractors. Treating them as commonplace, however, risks a dangerous complacency. Employers need to keep focused on how each of these measures connects to and contributes to asserting OSHA defenses as one of many reasons to maintain and record these practices diligently.

More importantly, taking these above measures promotes a conscientious focus on safety—a reliable way to turn the care for the construction family into a protection of those valued lives.