In this final part of our series on how to manage OSHA inspections effectively, we end with a “tip” that is really more of a requirement. And it is for an employer to remember key deadlines.
There are several important deadlines employers should remember during and after the OSHA inspection and citation processes, and a failure to meet these deadlines can lead to adverse consequences for the obligated party:
Stated Response Deadline for a Subpoenas Duces Tecum. This is a variable deadline, and it is usually a short-fuse (i.e., seven to ten calendar days from the date the subpoena is served). Employers may be able to request or negotiate extensions, if a proper and complete response will require more time. As a matter of best practices, this negotiation should be conducted or confirmed in writing.
Six-Month Statute of Limitations for the Issuance of Citations. Section 9(c) of the OSH Act states that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c). The deadline to issue citations is OSHA’s deadline, not an employer’s. That said, it is an important one for employers to keep in mind, as it will affect when the inspection procedures will end. This date may be subject to some different interpretations, so an attorney can help an employer determine whether OSHA failed to meet its deadline and then whether that failure can be used as an affirmative defense in any subsequent litigation.
Post the Citation. Upon receipt of the Citation and Notification of Penalty, employers must “immediately” post it upon receipt in a prominent place at or near the location where the violations allegedly occurred or, if that is impractical, in a place that is readily observable by affected employees. 29 C.F.R. § 1903.16(a) (emphasis added). It must remain posted for at least three working days (i.e., excluding weekends and federal holidays) or until the alleged violation has been abated, whichever is later. 29 C.F.R. § 1903.16(b).
Request an Informal Conference. Upon receipt of the Citation and Notification of Penalty, employers have fifteen working days to request an informal conference. An informal conference is a meeting usually between the OSHA compliance officer and/or OSHA Area Director and the employer representative (and the employer’s attorney, if the employer has retained one). During the conference, the parties will generally discuss the alleged violations and may negotiate a reclassification of the citation items, a reduction in the associated penalties, and/or a revision to the stated abatement measures and related deadlines.
Notice of Contest. Upon receipt of the Citation and Notification of Penalty, employers have fifteen working days to contest the citations and any aspect related to them. 29 C.F.R. § 1903.17(a). A request for an informal conference does not generally toll or interrupt this deadline, so employers must be sure that they meet both independently. An attorney can help you navigate the simultaneously running deadlines, as well as help you draft and submit a proper notice of contest. A proper notice of contest triggers the Secretary of Labor’s obligation to file a written complaint with the Occupational Safety and Health Review Commission (“OSHRC”) within twenty calendar days from OSHA’s receipt.
Answer Deadline. Upon service of the written complaint to the employer, the employer has twenty calendar days to file an answer to it. 29 C.F.R. § 2200.34(b)(1). Employers who receive a complaint from the Secretary of Labor should immediately consult with an attorney knowledgeable about OSHRC proceedings. These proceedings are a form of litigation and therefore have various accompanying discovery requirements, conferences with the presiding Administrative Law Judge (“ALJ”), and other pre-hearing and hearing obligations under the OSHRC Rules of Procedure.
The above list is a sampling of key deadlines only, so there may be other deadlines and related obligations for employers to consider. If an employer is unsure about a deadline or related obligation, it should immediately consult with an attorney knowledgeable about OSHA inspections and OSHRC proceedings.
Recap. Over the last several weeks in the Work Knowledge Blog, we have outlined various tips for employers to manage OSHA inspections effectively in their establishments—with a focus on process safety management (“PSM”) audits. This post is the last tip in the series. So in final summary of the tips we have covered, employers should:
(5) Remember key deadlines.
As always, if you have any questions about the applicability of the OSHA regulations to your business and/or your rights and obligations as an employer during and after an OSHA inspection, reach out to an attorney knowledgeable about the agency and its requirements.