OSHA News & Workplace Safety Blog

Using Affirmative Defense With OSHA

Affirmative Defenses A defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal or civil liability, even if it is proven that the defendant committed the alleged acts. From the perspective of the Occupational Safety and Health Administration (OSHA), an affirmative defense is a claim that if established and found to exist, can help to potentially rescind a citation that an employer received. Three Most Common Affirmative Defenses: Unpreventable Employee Misconduct or “Isolated Event” Defense Impossibility/Infeasibility of Compliance Defense Greater Hazard Defense Any defense you wish to argue must be brought up at the informal conference or hearing. If you raise an affirmative defense, the Area Director, CSHO, or Judge may require you to provide certain documents supporting your defense. Example: If you claim that an employee acted in a way that is forbidden by your company’s written work rules, you will be required to provide a copy of those rules and provide evidence that the employee violated those rules. Unpreventable Employee Misconduct or “Isolated Event” Defense When you argue that a violation occurred because of employee misconduct that you could not have prevented, you must demonstrate all of the following elements: A work rule adequate to prevent the violation was in place; Effective communication of the established work rule to employees; Methods for discovering violations of the established work rules; and Effective enforcement of established work rules when violations are discovered If you fail to establish and provide evidence of ALL of these four elements, your defense will fail. Impossibility/Infeasibility of Compliance Defense An employer argument that compliance with a particular standard was simply not possible or would prevent performance of required work, and reasonable alternative steps were taken to protect employees. To demonstrate this defense, you must show that: Compliance with the standard’s requirements is functionally impossible, or would prevent workers from completing required work, and There are no feasible alternative means of providing equivalent protection for workers and reasonable alternative steps for protection were taken. If you fail to establish either of these things, your defense will fail. Greater Hazard Defense When an employer argues that complying with the standard would have created a greater hazard than noncompliance, and the employer took reasonable alternative steps to protect employees. To demonstrate this defense, you must show that: Compliance with the standard would result in greater hazards to employees than noncompliance, and There are no alternative means of employee protection that would be as effective, and Reasonable alternative steps for employee protection were taken. If you fail to establish any of these things, your defense will fail. For all Affirmative Defenses, the burden of proof lies with the employer to prove any affirmative defense through documentation of facts and evidence. Note: This article is being provided for guidance and should not be considered legal advice. For professional assistance, please call us at (724) 776-1003.