How to Dispute an OSHA Citation – Be Aware of Deadlines or Waive Your Right to Dispute | Hendershot Cowart PC

You have the right to dispute an OSHA citation, but only if you meet the deadlines. The OSHA Handbook on Employer Rights and Responsibilities states, “A written Notice of Intent to Dispute must be filed with the OSHA Regional Director within 15 business days of the receipt of the citation by the employer.” In other words, if you receive a citation, you have approximately three calendar weeks to formally dispute the issue. The countdown begins on the first business day following receipt of the quote.

Even if you are negotiating and are likely to reach an informal settlement with OSHA, you should still submit your written Notice of Intent to Dispute to preserve your rights to formally dispute the citation.

The OSHA Competition Process

Once you file a Notice of Intent to Dispute within the required 15 business days (defined as Monday through Friday, excluding federal holidays), the OSHA Regional Director will refer your case to the Dispute Board. Occupational Safety and Health Review (OSHRC). The OSHRC is an independent federal agency and not part of the Department of Labor or OSHA. It was created to independently review citation contests under established procedures.

Once the OSCHRC creates a case and “registers” the case, the Chief Administrative Judge (“ALJ”) assigns the case to an ALJ located in Washington, DC, Atlanta, or Denver. The OSHRC Procedures establish a two-tiered process for resolving disputes between employers and OSHA:

  1. The first level is an evidentiary hearing before an ALJ.
  2. The second level – if either party requests a review – is a review of ALJ decisions by agency commissioners in Washington, D.C.

First level of the OSHA competition process: the hearing

An infographic discussing level one of the OSHA citation competition process: After an employer files a Notice of Intent to Dispute, the case is assigned to the Occupational Safety and Health Review Board for a hearing in which both parties present interviews and witnesses to support their case.

After receiving the file, the ALJ schedules a hearing in a public place as close as possible to the place of the offence. At this point, an employer can present evidence and argue to have the citation dismissed, the penalty reduced, and/or the classification of the offense reduced.

The hearing includes all elements of a trial, including the examination and cross-examination of witnesses and the presentation of evidence. You can choose to represent yourself at this hearing, but keep in mind that OSHA is represented by government attorneys who are 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 opportunity to present your case at the hearing. It usually takes place several months after both parties have made a formal discovery and appointed expert witnesses.

For these reasons, we recommend that you seek representation from an attorney familiar with administrative law procedure, OSHA regulations, and defenses for an OSHA citation.

Based on the evidence presented and arguments made during the hearing, the ALJ may confirm, modify, or eliminate any disputed element of the citation or sanction.

Second level of the OSHA competition process: the call

Inforgaphic discussing level two of the OSHA competition process: Once the judge issues a decision, either party can file an appeal within 30 days.

Once the ALJ issues a decision, both parties have 30 days to appeal that decision. The case is then forwarded to one of the three OSHRC Commissioners, who decides whether or not to review the case. If this is the case, the commissioners can examine the whole of the file or examine only certain questions. The auditors then issue an opinion on the questions they have examined.

If you are not satisfied with the board’s decision, you can appeal the case to a federal appeals court and ultimately to the United States Supreme Court, although OSHA cases rarely make it that far.

Exceptions to OSHA Contest Deadline

If you do not file a written notice within the 15 business day period, you lose your right to dispute the quote. The order will be final without the possibility of revision or appeal. There are a few rare cases that will excuse filing a late notice. For example, the OSHRC may agree to review your case if you and your attorney can demonstrate:

  • OSHA misconduct, or
  • The notice of competition was not filed by reason of “error, inadvertence, surprise or excusable negligence”.

COVID-19 has created unusual circumstances that have led to second chances – such as virus-related closures or closed offices – but these circumstances are rare and should not be used as an excuse for a late filing.

Why dispute an OSHA citation?

OSHA citations are more than inconvenient, they are costly and can ultimately harm 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 expose you to costly, intentional or repeated 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.

Kevin A. Perras