You have the right to contest an OSHA citation, but only if you meet the deadlines. The OSHA Employer Rights & Responsibilities handbook states, “a written Notice of Intent to Contest must be filed with the OSHA area director within 15 working days after the employer receives the citation.” In other words, if you receive a citation, you have about three calendar weeks to formally contest the issue. The clock starts ticking on the first business day after receipt of the citation.
Even if you are negotiating and likely to reach an informal settlement with OSHA, you should still submit your written Notice of Intent to Contest to preserve your rights to formally contest the citation.
The OSHA Contest Process
Once you file a Notice of Intent to Contest within the required 15 working days (defined as Monday through Friday, excluding federal holidays), the OSHA area director forwards your case to the Occupational Safety and Health Review Commission (OSHRC). The OSHRC is an independent federal agency and not part of the Department of Labor or OSHA. It was created to independently review the contests of citations through established procedures.
Once the OSCHRC creates a case file and “dockets” the case, the chief administrative law judge (“ALJ”) assigns the case to an ALJ located in either Washington, D.C., Atlanta, or Denver. The OSHRC procedures establish a two-level procedure for adjudicating disputes between employers and OSHA:
- The first level is an evidentiary hearing before an ALJ.
- The second level – if one of the parties petitions for review – is a review of the ALJ’s decisions by the agency's Commissioners in Washington, D.C.
Level One of the OSHA Contest Process: The Hearing
After receiving the case file, the ALJ schedules a hearing in a public place as close as possible to the site of the violation. At that point, an employer can present evidence and argue to have the citation dismissed, reduce the penalty, and/or reduce the classification of the offense.
The hearing includes all the elements of a trial, including examination and cross-examination of witnesses and the presentation of evidence. You may choose to represent yourself at this hearing, but keep in mind that OSHA is represented by a government attorney experienced in proving violations such as yours.
There are various sets of rules and procedures that control the process leading up to the hearing, and if you do not follow these rules and procedures, you may lose the ability to present your defenses at the hearing. It typically takes place several months after both sides conduct formal discovery and designate expert witnesses.
For these reasons, we recommend you seek the representation of counsel familiar with administrative law procedure, OSHA regulations, and the available defenses for an OSHA citation.
Based on the evidence presented and arguments made at the hearing, the ALJ may affirm, modify, or eliminate any contested items of the citation or penalty.
Level Two of the OSHA Contest Process: The Appeal
Once the ALJ issues a decision, both parties have 30 days to file an appeal of that decision. The case is then directed to one of the three OSHRC commissioners, who decide whether to review the case. If so, the commissioners may review the entire case or may review only certain issues. The commissioners then render an opinion on the issues they reviewed.
If you are unhappy with the commission’s decision, you may further appeal the case before a federal appellate court, and ultimately the U.S. Supreme Court, although OSHA cases rarely make it that far.
Exceptions to the OSHA Contest Deadline
If you do not file a written notice within the 15 working-day deadline, you will forfeit your right to contest the citation. The order will be final with no avenue for review or appeals. There are a few rare instances that will excuse filing a late notice. For instance, the OSHRC may agree to review your matter if you and your attorney can demonstrate:
- Misconduct by OSHA, or
- The notice of contest was not filed due to “mistake, inadvertence, surprise, or excusable neglect.”
COVID-19 has created unusual circumstances that have led to second chances – such as virus-related shutdowns or closed offices – but these circumstances are rare and should not be relied on as an excuse for late filing.
Why Contest an OSHA Citation?
OSHA citations are more than just troublesome, they are expensive and ultimately can be harmful to your business. They can damage your company’s reputation and disrupt workflow if certain workplace or equipment changes need to be made. They can also leave you exposed to costly willful or repeat violations. While safety is always of the utmost importance, it's also crucial to protect your rights as an employer and minimize the impact of an OSHA citation.