After an inspection where an OSHA compliance officer finds alleged violations of OSHA standards and/or recognized, serious hazards under section 5(a)(1) of the OSH Act, the officer makes recommendations to the OSHA Area Office Director regarding the alleged violations. The Area Office Director determines if citations will be issued.
OSHA must issue a citation and proposed penalty within six months of the violation’s occurrence. The citation will arrive via certified mail. Citations describe OSHA requirements allegedly violated, list any proposed penalties, and give a deadline (abatement date) for correcting the alleged hazards. Violations are categorized as willful, serious, other-than-serious, de minimis, failure to abate, and repeated. OSHA also factors in the gravity of the violation and the employer's violation history when calculating each penalty amount.
When citations are issued, OSHA also offers the employer an opportunity for an informal conference with the OSHA Area Director to discuss citations, penalties, abatement dates, or any other information. Seriously consider an informal conference to ask for an explanation of the violations, get the abatement date extended, and/or show your efforts to abate the cited hazards.
The agency and the employer may work out a settlement agreement to resolve the matter and to eliminate the hazards. A settlement may involve reducing penalties depending on employer size and good faith efforts. Alternatively, employers have 15 working days after receipt of citations and proposed penalties to send a written notice to the Area Director in order to formally contest the alleged violations, penalties, and/or abatement dates.
Scope
OSHA’s violation penalty structure is based on a number factors, including the type and gravity of violation, as well as the employer’s history, size, and good faith.
Key definitions
- CSHO (Compliance Safety and Health Officer): The federal OSHA employee who conducts inspections for the agency — a.k.a. “OSHA Inspector.”
- De minimis conditions: Conditions where an employer has implemented a measure different from one specified in a standard, that has no direct or immediate relationship to safety or health. An OSHA compliance officer will document these conditions in the same manner as violations. However, a penalty may be waived.
- General Duty Clause (GDC): A section of the OSH Act — Section 5(a)(1) — that requires employers to protect employees from recognized, serious hazards, regardless of whether there is a specific standard addressing that hazard. OSHA often uses the GDC to cite employers for not protecting workers from ergonomic-type hazards, workplace violence, and heat stress.
- General Industry: The group of industries who are covered by OSHA’s Part 1910 regulations. This includes the majority of workplaces, except for construction, agriculture, and maritime.
- OSH Act: The Occupational Safety and Health Act of 1970, which is the enabling legislation for OSHA.
- OSHA: The Occupational Safety and Health Administration — the federal agency that sets and enforces worker safety and health laws.
- Repeated violation: A hazardous/violative condition that is the same or similar to a previously cited condition in the past five years at either the same establishment or another establishment of the same company under federal OSHA jurisdiction.
- Serious violation: A violation where there is a substantial probability that death or serious physical harm could result, and the employer knew or should have known of the hazard.
- Willful violation: A violation that the employer intentionally and knowingly commits.
- Working days: Mondays through Fridays but shall not include Saturdays, Sundays, or Federal holidays. In computing 15 working days, the day of receipt of any notice shall not be included, and the last day of the 15 working days shall be included.
Summary of requirements
Under the OSH Act, employers should:
- Understand the OSHA violation penalty structure:
- Serious — A violation where there is a substantial probability that death or serious physical harm could result, and the employer knew or should have known of the hazard; carries proposed penalty of up to $16,550.
- Other-than-serious — A violation having a direct relationship to safety and health, but the most serious injury or illness that could reasonably be expected to result from an employee’s exposure would not be severe; no penalties are usually proposed, but can be as high as $16,550.
- Willful — A violation that the employer intentionally and knowingly commits; carries a maximum penalty of $165,514.
- Repeat — A violation that is similar to a previously cited violation at the same company location, or at other locations of the same company, within the previous five years; carries a maximum penalty of $165,514.
- Failure-To-Abate — A violation cited previously but not corrected within the prescribed abatement period; carries a $16,550 per day penalty maximum.
- Understand that the “gravity” of the violation plays a key role in penalty amount. The gravity of the violation is the primary consideration in determining penalty amounts. It is the basis for calculating the basic penalty for Serious and Other-Than-Serious violations. (Repeat and Willful violations can be based on the initial Serious or Other-Than-Serious gravity-based penalty but are multiplied by five to 10 times). To determine the gravity of a violation, OSHA makes the following two assessments:
- The severity of the injury or illness which could result from the alleged violation.
- The probability that an injury or illness could occur as a result of the alleged violation.
- Understand that OSHA can make history adjustments up or down 10 percent, depending on a compliant or serious violative history in the past five years.
- Know the adjustments in penalties that OSHA is required to make based on the size of the employer. Once a base penalty has been calculated using the Gravity-Based Penalty system, OSHA may then assign a reduction based on certain factors, including size of the employer. The size adjustment factor allows for the following maximum penalty reductions:
- 70 percent for employers with 1-10 employees
- 60 percent for employers with 11-25 workers
- 30 percent for employers with 26-100 workers
- 10 percent for employers with 101-250 workers
- Be familiar with OSHA’s “good faith” penalty adjustment policy. There may be up to an additional 25 percent reduction for evidence that the employer is making a good faith effort to provide a safe and healthy workplace.
- 25 percent for having a written and implemented safety and health program.
- 15 percent for having a documented and effective safety and health program, but with more than only incidental deficiencies.
- No good faith reduction is given to employers with no safety and health program or where a Willful violation is found.
- Note further violation, penalty, and citation policies prescribed in:
- Chapters 4 to 8 of the Field Operations Manual (FOM) provides penalties and debt collection information. The FOM is directive CPL 02-00-164.
- An OSHA memo called, "Annual Adjustments to OSHA Civil Penalties," updated each year that sets certain penalty adjustments and minimums.
- April 17, 2024, OSHA memo called, "Instance-by-Instance Citation Policy for Serious, Repeat, and Other-Than-Serious Violations."
- April 3, 2024, OSHA memo called, "Violation Grouping and Discretionary Ungrouping."
- Know that OSHA has 6 months from learning of a hazard to issue citations.
- Post OSHA citations for 3 days or until the violation is corrected, whichever is longer.
- Exercise their right to an informal conference to discuss proposed citations. Employers may also contest citations before an independent review commission.
- Remember there’s only 15-working days to file a proper notice of contest. This must be in writing.
- Understand that your company name and case details may appear on OSHA’s website if you receive a citation. For example, they may appear in OSHA’s Establishment Search page. Other examples include the OSHA News Releases page, OSHA Enforcement Cases with Initial Penalties of $40,000 or Above page, OSHA Severe Violator Enforcement Program (SVEP) page, and OSHA Corporate-Wide Settlement Agreements page.
- Be aware of “failure-to-abate” violations. If you fail to meet an abatement date and OSHA does a follow-up inspection(s), you may face additional citations for failure to abate. These penalties are calculated “per day” up to 30 days.
- Be familiar with your rights and responsibilities. OSHA publishes a booklet, “Employer Rights and Responsibilities Following a Federal OSHA Inspection."
