OSHA Field Inspection Reference Manual CPL 2.103
Section 7 - Chapter III. Inspection Documentation
 OSHA Field Inspection Reference Manual - Table of Contents
- Chapter Number: III
- Chapter Title: Inspection Documentation
CHAPTER III
INSPECTION DOCUMENTATION
A. Four Stage Case File Documentation.
1. General.
a. Guidelines. These guidelines are developed to
assist the CSHO in determining the minimum level of
written documentation appropriate for each of four case
file stages. All necessary information relative to
violations shall be obtained during the inspection, using
any means deemed appropriate by the CSHO (i.e., notes,
audio/videotapes, photographs, and employer records).
b. Solicitor Coordination. Consultation in accordance
with regional procedures, including Solicitor
procedures, shall be considered when the inspection or
investigation could involve important, novel or complex
litigation or when consultation is necessary in the
CSHO or Area Director's professional judgment. If
consultation is deemed necessary, such consultation
shall be conducted at the earliest stage possible of
the investigation.
2. Case File Stages. The following paragraphs indicate
what documentation is required for each of the four case
file stages.
NOTE: The difference between Stage III and Stage IV
is one of format and organization only. A Stage III case
file is not understood as involving a lesser degree of
documentation.
a. Stage I.
No on-site inspection conducted ---
o OSHA-1 or equivalent, and brief statement expanding
upon the reason for not conducting the inspection.
o If refusal of entry, information necessary to
secure a warrant (see Chapter II, A.2.c.).
o Complainant/referral response, if
complaint/referral inspection.
A. 2. b. Stage II.
In-compliance inspection ---
o OSHA-1 or equivalent.
o OSHA-1A or pertinent information (see B.1. of this
chapter).
o Records obtained during the inspection, based on
the CSHO's professional judgment as to what should
be obtained.
NOTE: The CSHO need not document that a
condition was in compliance beyond a
general statement that no conditions
were observed in violation of any
standard.
o Complainant/referral response, if
complaint/referral inspection.
c. Stage III.
Inspection conducted, citations to be issued ---
o OSHA-1 or equivalent.
o OSHA-1A or equivalent (see B.1. of this chapter).
o Records obtained during the inspection which, based
on the CSHO's professional judgment, are necessary
to support the violations.
o OSHA-1B forms or the equivalent with the following
included:
Inspection #
Instances on page (a,b,/)
Type of violation (S,W,R,O,FTA)
Citation number and item number
Number exposed
REC
Abatement Period
SAVE, AVD, and/or standard reference
Photo/video location
Severity Rating (H,M,L) and brief justification
Probability Rating (G,L) and brief justification
GBP and multiplier if applicable
% reduction (adjustment)
Proposed penalty
NOTE: Information in relation to exposed
employees shall be documented on the
OSHA-1B, or referenced on the OSHA-1B
as to the specific location of this
information.
o Complainant/referral response, if
complaint/referral inspection.
A. 2. d. Stage IV.
Citations are contested ---
o CSHO's will determine after consultation with the
Solicitor if the documentation obtained during the
inspection needs to be transferred to a different
format or location within the file (e.g., transfer
of video/audio information to a written format).
The information will then be transferred to the
appropriate areas as needed. Items which may be
considered include transfer of exposed employee
information, instance description, employer
knowledge, employer's affirmative defenses,
employer/ employee comments, and other employer
information to the OSHA-1B or equivalent.
B. Specific Forms.
1. Narrative, Form OSHA-1A.
a. General. The OSHA-1A Form, or its equivalent,
shall be used to record information relative to the
following, at a minimum:
ITEM: Establishment Name.
ITEM: Inspection Number.
ITEM: Additional Citation Mailing Addresses.
ITEM: Names and Addresses of all Organized Employee
Groups.
ITEM: Names, Addresses, and Phone Numbers of
Authorized Representatives of Employees.
ITEM: Employer Representatives Contacted and extent of
their participation in the inspection.
ITEM: Comment on S&H program to the extent
necessary, based on CSHO's professional
judgment, including penalty reduction
justifications for good faith.
ITEM: Document whether closing conference was held,
describe any unusual circumstances.
ITEM: Additional Comments (CSHO's shall use their
professional judgment to determine if any
additional information shall be added to the
case file.)
B. 1. b. Specific. The following information may be located
on the OSHA-1A Form or referenced on the OSHA-1A as to
the specific location of this information:
ITEM: Names, Addresses, and Phone Numbers of Other
Persons Contacted.
ITEM: Accompanied By.
2. Photo Mounting Worksheet, Form OSHA-89.
This worksheet may be utilized by the CSHO, if mounting is
necessary. Other methods of mounting the photograph may
be used, such as attaching it to the OSHA-1B. The
photograph shall be annotated "trade secret," if
applicable.
3. Inspection Case File Activity Diary Insert.
The Inspection Case File Activity Diary is designed to
provide a ready record and summary of all actions relating
to a case. The diary sheet will be used to document
important events related to the case, especially those not
found elsewhere in the case file.
C. Violations.
1. Basis of Violations.
a. Standards and Regulations. Section 5(a)(2) of the
Occupational Safety and Health Act states that each
employer has a responsibility to comply with the
occupational safety and health standards promulgated
under the Act. The specific standards and regulations
are found in Title 29 Code of Federal Regulations (CFR)
1900 series. Subparts A and B of 29 CFR 1910 specifically
establish the source of all the standards which
are the basis of violations.
NOTE: The most specific subdivision of the
standard shall be used for citing
violations.
(1) Definition and Application of Universal
Standards (Horizontal) and Specific Industry
Standards (Vertical). Specific Industry
standards are those standards which apply to a
particular industry or to particular operations,
practices, conditions, processes, means,
methods, equipment or installations. Universal
standards are those standards which apply when a
condition is not covered by a specific industry
standard. Within both universal and specific
industry standards there are general standards
and specific standards.
C. 1. a. (1) (a) When a hazard in a particular industry is
covered by both a specific industry (e.g.,
29 CFR Part 1915) standard and a universal
(e.g., 29 CFR Part 1910) standard, the
specific industry standard shall take
precedence. This is true even if the
universal standard is more stringent.
(b) When determining whether a universal or a
specific industry standard is applicable to a
work situation, the CSHO shall focus attention
on the activity in which the employer is
engaged at the establishment being inspected
rather than the nature of the employer's
general business.
(2) Variances. The employer's requirement to
comply with a standard may be modified through
granting of a variance, as outlined in Section 6
of the Act.
(a) An employer will not be subject to citation
if the observed condition is in compliance
with either the variance or the standard.
(b) In the event that the employer is not in
compliance with the requirements of the
variance, a violation of the standard shall
be cited with a reference in the citation to
the variance provision that has not been met.
b. Employee Exposure.
(1) Definition of Employee. Whether or not
exposed persons are employees of an employer
depends on several factors, the most important
of which is who controls the manner in which the
employees perform their assigned work. The
question of who pays these employees may not be
the determining factor. Determining the
employer of an exposed person may be a very complex
question, in which case the Area Director
may seek the advice of the Regional Solicitor.
(2) Proximity to the Hazard. The proximity of
the workers to the point of danger of the
operation shall be documented.
C. 1. b. (3) Observed Exposure. Employee exposure is
established if the CSHO witnesses, observes, or
monitors exposure of an employee to the hazardous
or suspected hazardous condition during
work or work-related activities. Where a
standard requires engineering or administrative
controls (including work practice controls),
employee exposure shall be cited regardless of
the use of personal protective equipment.
(4) Unobserved Exposure. Where employee
exposure is not observed, witnessed, or
monitored by the CSHO, employee exposure is
established if it is determined through witness
statements or other evidence that exposure to a
hazardous condition has occurred, continues to
occur, or could recur.
(a) In fatality/catastrophe (or other "accident")
investigations, employee exposure is
established if the CSHO determines, through
written statements or other evidence, that
exposure to a hazardous condition occurred at
the time of the accident.
(b) In other circumstances, based on the CSHO's
professional judgment and determination,
exposure to hazardous conditions has occurred
in the past, and such exposure may serve as
the basis for a violation when employee
exposure has occurred in the previous six
months.
(5) Potential Exposure. A citation may be
issued when the possibility exists that an
employee could be exposed to a hazardous
condition because of work patterns, past
circumstances, or anticipated work requirements,
and it is reasonably predictable that employee
exposure could occur, such as:
(a) The hazardous condition is an integral part
of an employer's recurring operations, but
the employer has not established a policy or
program to ensure that exposure to the
hazardous condition will not recur; or
(b) The employer has not taken steps to prevent
access to unsafe machinery or equipment which
employees may have reason to use.
2. Types of Violations.
a. Other-Than-Serious Violations. This type of
violation shall be cited in situations where the most
serious injury or illness that would be likely to
result from a hazardous condition cannot reasonably be
predicted to cause death or serious physical harm to
exposed employees but does have a direct and immediate
relationship to their safety and health.
C. 2. b. Serious Violations.
(1) Section 17(k) of the Act provides ". . . a
serious violation shall be deemed to exist in a
place of employment if there is a substantial
probability that death or serious physical harm
could result from a condition which exists, or
from one or more practices, means, methods,
operations, or processes which have been adopted
or are in use, in such place of employment
unless the employer did not, and could not with
the exercise of reasonable diligence, know of
the presence of the violation."
(2) The CSHO shall consider four elements to
determine if a violation is serious.
(a) Step 1. The types of accident or
health hazard exposure which the violated
standard or the general duty clause is
designed to prevent.
(b) Step 2. The most serious injury or
illness which could reasonably be expected
to result from the type of accident or health
hazard exposure identified in Step 1.
(c) Step 3. Whether the results of the
injury or illness identified in Step 2 could
include death or serious physical harm.
Serious physical harm is defined as:
1 Impairment of the body in which part of
the body is made functionally
useless or is substantially reduced
in efficiency on or off the job.
Such impairment may be permanent or
temporary, chronic or acute. Injuries
involving such impairment would usually
require treatment by a medical doctor.
2 Illnesses that could shorten life or
significantly reduce physical or mental
efficiency by inhibiting the normal
function of a part of the body.
(d) Step 4. Whether the employer knew,
or with the exercise of reasonable diligence,
could have known of the presence of the
hazardous condition.
1 In this regard, the supervisor
represents the employer and a supervisor's
knowledge of the hazardous condition
amounts to employer knowledge.
2 In cases where the employer may contend
that the supervisor's own conduct
constitutes an isolated event of
employee misconduct, the CSHO shall
attempt to determine the extent to
which the supervisor was trained and
supervised so as to prevent such conduct,
and how the employer enforces the
rule.
3 If, after reasonable attempts to do so,
it cannot be determined that the
employer has actual knowledge of the
hazardous condition, the knowledge
requirement is met if the CSHO is
satisfied that the employer could have
known through the exercise of
reasonable diligence. As a general
rule, if the CSHO was able to discover
a hazardous condition, and the
condition was not transitory in nature,
it can be presumed that the employer
could have discovered the same
condition through the exercise of
reasonable diligence.
C. 2. c. Violations of the General Duty Clause. Section
5(a)(1) of the Act requires that "Each employer shall
furnish to each of his (sic) employees employment and a
place of employment which are free from recognized
hazards that are causing or are likely to cause death
or serious physical harm to his (sic) employees." The
general duty provisions shall be used only where there
is no standard that applies to the particular hazard
involved, as outlined in 29 CFR 1910.5(f).
(1) Evaluation of Potential Section 5(a)(1)
Situations. In general, Review Commission and
court precedent has established that the
following elements are necessary to prove a
violation of the general duty clause:
(a) The employer failed to keep the workplace
free of a hazard to which employees of that
employer were exposed;
(b) The hazard was recognized;
(c) The hazard was causing or was likely to cause
death or serious physical harm; and
(d) There was a feasible and useful method to
correct the hazard.
(2) Discussion of Section 5(a)(1) Elements. The
above four elements of a Section 5(a)(1) violation
are discussed in greater detail as follows:
(a) A Hazard to Which Employees Were Exposed.
A general duty citation must involve both a
serious hazard and exposure of employees.
C. 2. c. (2) (a) 1 Hazard. A hazard is a danger
which threatens physical harm to
employees.
a Not the Lack of a Particular
Abatement Method. In the past
some Section 5(a)(1) citations have
incorrectly alleged that the
violation is the failure to implement
certain precautions, corrective
measures or other abatement steps
rather than the failure to prevent
or remove the particular hazard. It
must be emphasized that Section
5(a)(1) does not mandate a
particular abatement measure but
only requires an employer to render
the workplace free of certain
hazards by any feasible and
effective means which the employer
wishes to utilize.
EXAMPLE: In a hazardous situation
involving high pressure gas where the
employer has failed to train employees
properly, has not installed the proper
high pressure equipment, and has
improperly installed the equipment
that is in place, there are three
abatement measures which the employer
failed to take; there is only one
hazard (that is, exposure to
the hazard of explosion due to the
presence of high pressure gas) and
hence only one general duty clause
citation.
b The Hazard Is Not a Particular
Accident. The occurrence of an
accident does not necessarily mean
that the employer has violated
Section 5(a)(1) although the
accident may be evidence of a
hazard. In some cases a Section
5(a)(1) violation may be unrelated
to the accident. Although accident
facts may be relevant and shall be
gathered, the citation shall address
the hazard in the workplace, not the
particular facts of the accident.
EXAMPLE: A fire occurred in a
workplace where flammable materials were
present. No employee was injured by
the fire itself but an employee,
disregarding the clear instructions
of his/her supervisor to use an
available exit, jumped out of a window
and broke a leg. The danger of fire
due to the presence of flammable
materials may be a recognized hazard
causing or likely to cause death or
serious physical harm, but the action
of the employee may be an instance of
unpreventable employee misconduct. The
citation should deal with the fire
hazard, not with the accident involving
the employee who broke his/her leg.
C. 2. c. (2) (a) 1 c The Hazard Must Be Reasonably
Foreseeable. The hazard for which a
citation is issued must be reasonably
foreseeable.
i. All the factors which could
cause a hazard need not be
present in the same place at the
same time in order to prove
foreseeability of the hazard;
e.g., an explosion need not
be imminent.
EXAMPLE: If combustible
gas and oxygen are present in
sufficient quantities in a
confined area to cause an
explosion if ignited but no
ignition source is present or
could be present, no Section
5(a)(1) violation would
exist. If an ignition source is
available at the workplace and
the employer has not taken
sufficient safety precautions to
preclude its use in the
confined area, then a
foreseeable hazard may exist.
ii. It is necessary to establish the
reasonable foreseeability of the
general workplace hazard, rather
than the particular hazard which
led to the accident.
EXAMPLE: A titanium dust
fire may have spread from one
room to another only because an
open can of gasoline was in the
second room. An employee who
usually worked in both rooms was
burned in the second room from
the gasoline. The presence of
gasoline in the second room may
be a rare occurrence. It is not
necessary to prove that a fire
in both rooms was reasonably
foreseeable. It is necessary
only to prove that the fire
hazard, in this case due to the
presence of titanium dust, was
reasonably foreseeable.
2 The Hazard Must Affect the Cited
Employer's Employees. The employees
exposed to the Section 5(a)(1) hazard
must be the employees of the cited
employer.
(b) The Hazard Must be Recognized.
Recognition of a hazard can be established on
the basis of industry recognition, employer
recognition, or "common-sense" recognition.
The use of common-sense as the basis for
establishing recognition shall be limited to
special circumstances. Recognition of the
hazard must be supported by satisfactory
evidence and adequate documentation in the
file as follows:
C. 2. c. (2) (b) 1 Industry Recognition. A hazard
is recognized if the employer's
industry recognizes it. Recognition
by an industry other than the
industry to which the employer
belongs is generally insufficient to
prove this element of a Section
5(a)(1) violation. Although evidence
of recognition by the employer's
specific branch within an industry
is preferred, evidence that the employer's
industry recognizes the hazard may be
sufficient.
a In cases where State and local
government agencies not falling
under the preemption provisions of
Section 4(b)(1) have codes or
regulations covering hazards not
addressed by OSHA standards, the
Area Director shall determine
whether the hazard is to be cited
under Section 5(a)(1) or referred to
the appropriate local agency for
enforcement.
b Regulations of other Federal
agencies or of State atomic energy
agencies generally shall not be
used. They raise substantial
difficulties under Section 4(b)(1)
of the Act, which provides that OSHA
is preempted when such an agency has
statutory authority to deal with the
working condition in question.
2 Employer Recognition. A recognized
hazard can be established by evidence
of actual employer knowledge. Evidence
of such recognition may consist of
written or oral statements made by the
employer or other management or
supervisory personnel during or before
the OSHA inspection, or instances where
employees have clearly called the
hazard to the employer's attention.
3 Common-Sense Recognition. If
industry or employer recognition of the
hazard cannot be established in
accordance with (a) and (b),
recognition can still be established if
it is concluded that any reasonable
person would have recognized the
hazard. This theory of recognition
shall be used only in flagrant cases.
(c) The Hazard Was Causing or Was likely to
Cause Death or Serious Physical Harm. This
element of Section 5(a)(1) violation is
identical to the elements of a serious
violation, see C.2.b. of this chapter.
(d) The Hazard Can Be Corrected by a Feasible
and Useful Method.
1 To establish a Section 5(a)(1)
violation the agency must identify a
method which is feasible, available and
likely to correct the hazard. The
information shall indicate that the
recognized hazard, rather than a
particular accident, is preventable.
C. 2. c. (2) (d) 2 If the proposed abatement method
would eliminate or significantly
reduce the hazard beyond whatever
measures the employer may be taking,
a Section 5(a)(1) citation may be
issued. A citation shall not be
issued merely because the agency
knows of an abatement method
different from that of the employer,
if the agency's method would not
reduce the hazard significantly more
than the employer's method. It must
also be noted that in some cases
only a series of abatement methods
will alleviate a hazard. In such a
case all the abatement methods shall
be mentioned.
(3) limitations on Use of the General Duty
Clause. Section 5(a)(1) is to be used only
within the guidelines given in C.2.c. of this
chapter.
(a) Section 5(a)(1) may be cited in the
alternative when a standard is also cited to
cover a situation where there is doubt as to
whether the standard applies to the hazard.
(b) Section 5(a)(1) violations shall not be
grouped together, but may be grouped with a
related violation of a specific standard.
(c) Section 5(a)(1) shall not normally be used to
impose a stricter requirement than that
required by the standard. For example, if
the standard provides for a permissible
exposure limit (PEL) of 5 ppm, even if data
establishes that a 3 ppm level is a
recognized hazard, Section 5(a)(1) shall not
be cited to require that the 3 ppm level be
achieved unless the limits are based on
different health effects. If the standard
has only a time-weighted average permissible
exposure level and the hazard involves
exposure above a recognized ceiling level,
the Area Director shall consult with the
Regional Solicitor.
NOTE: An exception to this rule may apply
if it can be documented that "an
employer knows a particular safety
or health standard is inadequate to
protect his workers against the
specific hazard it is intended to
address." International Union,
U.A.W. v. General Dynamics Land
Systems Div., 815 F.2d 1570 (D.C.
Cir. 1987). Such cases shall be
subject to pre-citation review.
C. 2. c. (3) (d) Section 5(a)(1) shall normally not be used
to require an abatement method not set
forth in a specific standard. If a toxic
substance standard covers engineering
control requirements but not requirements
for medical surveillance, Section 5(a)(1)
shall not be cited to require medical
surveillance.
(e) Section 5(a)(1) shall not be used to enforce
"should" standards.
(f) Section 5(a)(1) shall not normally be used to
cover categories of hazards exempted by a
standard. If, however, the exemption is in
place because the drafters of the standard
(or source document) declined to deal with
the exempt category for reasons other than
the lack of a hazard, the general duty clause
may be cited if all the necessary elements
for such a citation are present.
(4) Pre-Citation Review. Section 5(a)(1)
citations shall undergo a pre-citation review
following established area office procedures
when required by the Area Director or Assistant
Area Director.
NOTE: If a standard does not apply and all
criteria for issuing a Section 5(a)(1)
citation are not met, but it is
determined that the hazard warrants
some type of notification, a letter
shall be sent to the employer and the
employee representative describing the
hazard and suggesting corrective
action.
d. Willful Violations. The following definitions and
procedures apply whenever the CSHO suspects that a
willful violation may exist:
(1) A willful violation exists under the Act where
the evidence shows either an intentional
violation of the Act or plain indifference to
its requirements.
(a) The employer committed an intentional and
knowing violation if:
1 An employer representative was aware of
the requirements of the Act, or the
existence of an applicable standard or
regulation, and was also aware of a
condition or practice in violation of
those requirements, and did not abate
the hazard.
2 An employer representative was not
aware of the requirements of the Act or
standards, but was aware of a
comparable legal requirement (e.g.,
state or local law) and was also aware
of a condition or practice in violation
of that requirement, and did not abate
the hazard.
C. 2. d. (1) (b) The employer committed a violation with
plain indifference to the law where:
1 Higher management officials were aware
of an OSHA requirement applicable to
the company's business but made little
or no effort to communicate the
requirement to lower level supervisors
and employees.
2 Company officials were aware of a
continuing compliance problem but made
little or no effort to avoid
violations.
EXAMPLE: Repeated issuance of citations
addressing the same or similar conditions.
3 An employer representative was not
aware of any legal requirement, but was
aware that a condition or practice was
hazardous to the safety or health of
employees and made little or no effort
to determine the extent of the problem
or to take the corrective action.
Knowledge of a hazard may be gained
from such means as insurance company
reports, safety committee or other
internal reports, the occurrence of
illnesses or injuries, media coverage,
or, in some cases, complaints of
employees or their representatives.
4 Finally, in particularly flagrant
situations, willfulness can be found
despite lack of knowledge of either a
legal requirement or the existence of a
hazard if the circumstances show that
the employer would have placed no
importance on such knowledge even if he
or she had possessed it, or had no
concern for the health or safety of
employees.
(2) It is not necessary that the violation be
committed with a bad purpose or an evil intent
to be deemed "willful." It is sufficient that
the violation was deliberate, voluntary or
intentional as distinguished from inadvertent,
accidental or ordinarily negligent.
(3) The CSHO shall carefully develop and record,
during the inspection, all evidence available
that indicates employer awareness of and the
disregard for statutory obligations or of the
hazardous conditions. Willfulness could exist
if an employer is advised by employees or
employee representatives of an alleged hazardous
condition and the employer makes no reasonable
effort to verify and correct the condition.
Additional factors which can influence a
decision as to whether violations are willful
include:
C. 2. d. (3) (a) The nature of the employer's business and
the knowledge regarding safety and health
matters which could reasonably be expected
in the industry.
(b) The precautions taken by the employer to
limit the hazardous conditions.
(c) The employer's awareness of the Act and of
the responsibility to provide safe and
healthful working conditions.
(d) Whether similar violations and/or hazardous
conditions have been brought to the attention
of the employer.
(e) Whether the nature and extent of the
violations disclose a purposeful
disregard of the employer's responsibility
under the Act.
(4) If the Area Office cannot determine whether to
issue a citation as a willful or a repeat
violation due to the raising of difficult
issues of law and policy which will require the
evaluation of complex factual situations, the
Area Director shall normally consult with the
Regional Solicitor.
e. Criminal/Willful Violations. Section 17(e) of the
Act provides that: "Any employer who willfully
violates any standard, rule or order promulgated
pursuant to Section 6 of this Act, or of any
regulations prescribed pursuant to this Act, and that
violation caused death to any employee, shall, upon
conviction, be punished by a fine of not more than
$10,000 or by imprisonment for not more than six
months, or by both; except that if the conviction is
for a violation committed after a first conviction of
such person, punishment shall be a fine of not more
than $20,000 or by imprisonment for not more than one
year, or by both."
(1) The Area Director, in coordination with the
Regional Solicitor, shall carefully evaluate all
willful cases involving worker deaths to
determine whether they may involve criminal
violations of Section 17(e) of the Act. Because
the nature of the evidence available is of
paramount importance in an investigation of this
type, there shall be early and close liaison
between the OSHA investigator, the Area
Director, the Regional Administrator, and the
Regional Solicitor in developing any finding
which might involve a violation of Section 17(e)
of the Act.
C. 2. e. (2) The following criteria shall be considered in
investigating possible criminal/willful
violations:
(a) In order to establish a criminal/willful
violation OSHA must prove that:
1 The employer violated an OSHA standard.
A criminal/willful violation cannot be
based on violation of Section 5(a)(1).
2 The violation was willful in nature.
3 The violation of the standard caused
the death of an employee. In order to
prove that the violation of the
standard caused the death of an
employee, there must be evidence in the
file which clearly demonstrates that
the violation of the standard was the
cause of or a contributing factor to an
employee's death.
(b) Although it is generally not necessary to
issue "Miranda" warnings to an employer when
a criminal/willful investigation is in
progress, the Area Director shall seek the
advice of the Regional Solicitor on this
question.
(c) Following the investigation, if the Area
Director decides to recommend criminal
prosecution, a memorandum containing that
recommendation shall be forwarded promptly to
the Regional Administrator. It shall include
an evaluation of the possible criminal
charges, taking into consideration the
greater burden of proof which requires that
the Government's case be proven beyond a
reasonable doubt. In addition, if the
correction of the hazardous condition appears
to be an issue, this shall be noted in the
transmittal memorandum because in most cases
the prosecution of a criminal/willful case
delays the affirmance of the civil citation
and its correction requirements.
(d) The Area Director shall normally issue a
civil citation in accordance with current
procedures even if the citation involves
allegations under consideration for criminal
prosecution. The Regional Administrator
shall be notified of such cases, and they
shall be forwarded to the Regional Solicitor
as soon as practicable for possible referral
to the U.S. Department of Justice.
(3) When a willful violation is related to a
fatality, the Area Director shall ensure the
case file contains succinct documentation
regarding the decision not to make a
criminal referral. The documentation should
indicate which elements of a criminal violation
make the case unsuitable for criminal referral.
C. 2. f. Repeated Violations. An employer may be cited for
a repeated violation if that employer has been cited
previously for a substantially similar condition
and the citation has become a final order.
(1) Identical Standard. Generally, similar
conditions can be demonstrated by showing that
in both situations the identical standard was
violated.
EXCEPTION: Previously a citation was issued for
a violation of 29 CFR 1910.132(a)
for not requiring the use of safety-toe
footwear for employees. A
recent inspection of the same
establishment revealed a violation
of 29 CFR 1910.132(a) for not
requiring the use of head protection
(hard hats). Although the same
standard was involved, the hazardous
conditions found were not substantially
similar and therefore a repeated violation
would not be appropriate.
(2) Different Standards. In some circumstances,
similar conditions can be demonstrated when
different standards are violated. Although
there may be different standards involved, the
hazardous conditions found could be substantially
similar and therefore a repeated violation would
be appropriate.
(3) Time limitations. Although there are no
statutory limitations upon the length of time
that a citation may serve as a basis for a
repeated violation, the following policy shall
be used in order to ensure uniformity.
(a) A citation will be issued as a repeated
violation if:
1 The citation is issued within 3 years
of the final order of the previous
citation, or,
2 The citation is issued within 3 years
of the final abatement date of that
citation, whichever is later.
(b) When a violation is found during an
inspection, and a repeated citation has been
issued for a substantially similar condition
which meets the above time limitations, the
violation may be classified as a second
instance repeated violation with a
corresponding increase in penalty (see
Chapter IV, C.2.l.).
C. 2. f. (3) (c) For any further repetition, the Area
Director shall be consulted for guidance.
(4) Obtaining Inspection History. For purposes
of determining whether a violation is repeated,
the following criteria shall apply:
(a) High Gravity Serious Violations. When
high gravity serious violations are to be
cited, the Area Director shall obtain a
history of citations previously issued to
this employer at all of its identified
establishments, nationwide, (Federal enforcement
only) within the same two-digit SIC code. If
these violations have been previously cited
within the time limitations described in
C.2.f.(3), above, and have become a final
order of the Review Commission, a repeated
citation may be issued. Under special
circumstances, the Area Director, in
consultation with the Regional Solicitor, may
also issue citations for repeated violations
without regard for the SIC code.
(b) Violations of Lesser Gravity. When
violations of lesser gravity than high
gravity serious are to be cited, Agency
policy is to encourage the Area Director to
obtain a national inspection history whenever
the circumstances of the current inspection
will result in a large number of serious,
repeat, or willful citations. This is
particularly so if the employer is known to
have establishments nationwide and if
significant citations have been issued
against the employer in other areas, or at
other mobile worksites.
(c) Geographical limitations. Where a
national inspection history has not been
obtained, the following criteria regarding
geographical limitations shall apply:
1 Multifacility Employer. A
multifacility employer shall be cited
for a repeated violation if the
violation recurred at any worksite
within the same OSHA Area Office
jurisdiction.
EXAMPLE: Where the construction site
extends over a large area and/or the scope of
the job is unclear (such as road building),
that portion of the workplace specified in
the employer's contract which falls within
the Area Office jurisdiction is the
establishment. If an employer has several
worksites within the same Area Office
jurisdiction, a citation of a violation at
Site A will serve as the basis for a repeated
citation in Area B.
2 Longshoring Establishment. A
longshoring establishment will encompass
all longshoring activities of a single
stevedore within any single port area.
Longshoring employers are subject to
repeated violation citations based on
prior violations occurring anywhere.
Other maritime employers covered by OSHA
standards (e.g., shipbuilding, ship
repairing) are multifacility employers as
defined in a., above.
C. 2. f. (5) Repeated vs. Willful. Repeated violations
differ from willful violations in that they may
result from an inadvertent, accidental or
ordinarily negligent act. Where a repeated
violation may also meet the criteria for willful
but not clearly so, a citation for a repeated
violation shall normally be issued.
(6) Repeated vs. Failure to Abate. A failure to
abate situation exists when an item of equipment
or condition previously cited has never been
brought into compliance and is noted at a later
inspection. If, however, the violation was not
continuous (i.e., if it had been corrected and
then reoccurred), the subsequent occurrence is a
repeated violation.
(7) Alleged Violation Description (AVD). If a
repeated citation is issued, the CSHO must
ensure that the cited employer is fully informed
of the previous violations serving as a basis
for the repeated citation, by notation in the
AVD portion of the citation, using the following
or similar language:
THE (COMPANY NAME) WAS PREVIOUSLY CITED FOR A
VIOLATION OF THIS OCCUPATIONAL SAFETY AND HEALTH
STANDARD OR ITS EQUIVALENT STANDARD (NAME
PREVIOUSLY CITED STANDARD) WHICH WAS CONTAINED IN
OSHA INSPECTION NUMBER_________, CITATION
NUMBER_________, ITEM NUMBER_________, ISSUED ON
(DATE), WITH RESPECT TO A WORKPLACE LOCATED AT
___________.
g. De Minimis Violations. De Minimis violations are
violations of standards which have no direct or
immediate relationship to safety or health and shall
not be included in citations. An OSHA-1B/1BIH is no
longer required to be completed for De Minimis
violations. The employer should be verbally notified
of the violation and the CSHO should note it in the
inspection case file. The criteria for finding a de
minimis violation are as follows:
(1) An employer complies with the clear intent of
the standard but deviates from its particular
requirements in a manner that has no direct or
immediate relationship to employee safety or
health. These deviations may involve distance
specifications, construction material requirements,
use of incorrect color, minor variations from
recordkeeping, testing, or inspection
regulations, or the like.
EXAMPLE #1: 29 CFR 1910.27(b)(1)(ii) allows
12 inches (30 centimeters) as the maximum distance
between ladder rungs. Where the rungs are 13
inches (33 centimeters) apart, the condition is de
minimis.
EXAMPLE #2: 29 CFR 1910.28(a)(3) requires
guarding on all open sides of scaffolds. Where
employees are tied off with safety belts in lieu of
guarding, often the intent of the standard will be
met, and the absence of guarding may be de minimis.
EXAMPLE #3: 29 CFR 1910.217(e)(1)(ii)
requires that mechanical power presses be inspected
and tested at least weekly. If the machinery is
seldom used, inspection and testing prior to each
use is adequate to meet the intent of the standard.
(2) An employer complies with a proposed standard or
amendment or a consensus standard rather than
with the standard in effect at the time of the
inspection and the employer's action clearly
provides equal or greater employee protection or
the employer complies with a written
interpretation issued by the OSHA Regional or
National Office.
(3) An employer's workplace is at the "state of the
art" which is technically beyond the
requirements of the applicable standard and
provides equivalent or more effective employee
safety or health protection.
C. 3. Health Standard Violations.
a. Citation of Ventilation Standards. In cases where
a citation of a ventilation standard may be
appropriate, consideration shall be given to standards
intended to control exposure to recognized hazardous
levels of air contaminants, to prevent fire or
explosions, or to regulate operations which may involve
confined space or specific hazardous conditions. In
applying these standards, the following guidelines
shall be observed:
(1) Health-Related Ventilation Standards. An
employer is considered in compliance with a
health-related airflow ventilation standard when
the employee exposure does not exceed
appropriate airborne contaminant standards;
e.g., the PELs prescribed in 29 CFR 1910.1000.
(a) Where an over-exposure to an airborne
contaminant is detected, the appropriate air
contaminant engineering control requirement
shall be cited; e.g., 29 CFR 1910.1000(e).
In no case shall citations of this standard
be issued for the purpose of requiring
specific volumes of air to ventilate such
exposures.
(b) Other requirements contained in
health-related ventilation standards shall be
evaluated without regard to the concentration
of airborne contaminants. Where a specific
standard has been violated and an actual
or potential hazard has been documented, a
citation shall be issued.
C. 3. a. (2) Fire- and Explosion-Related Ventilation
Standards. Although they are not technically
health violations, the following guidelines
shall be observed when citing fire- and
explosion-related ventilation standards:
(a) Adequate Ventilation. In the application
of fire- and explosion- related ventilation
standards, OSHA considers that an operation
has adequate ventilation when both of the
following criteria are met:
1 The requirement of the specific
standard has been met.
2 The concentration of flammable vapors
is 25 percent or less of the lower
explosive limit (LEL).
EXCEPTION: Certain standards specify
violations when 10 percent of the LEL is
exceeded. These standards are found in
maritime and construction exposures.
(b) Citation Policy. If 25 percent (10
percent when specified for maritime or
construction operations) of the LEL has been
exceeded and:
1 The standard requirements have not been
met, the standard violation normally
shall be cited as serious.
2 There is no applicable specific
ventilation standard, Section 5(a)(1)
of the Act shall be cited in accordance
with the guidelines given in C.2.c. of
this chapter.
b. Violations of the Noise Standard. Current
enforcement policy regarding 29 CFR 1910.95(b)(1)
allows employers to rely on personal protective equipment
and a hearing conservation program rather than
engineering and/or administrative controls when hearing
protectors will effectively attenuate the noise to
which the employee is exposed to acceptable levels as
specified in Tables G-16 or G-16a of the standard.
(1) Citations for violations of 29 CFR 1910.95(b)(1)
shall be issued when engineering and/or
administrative controls are feasible, both
technically and economically; and
C. 3. b. (1) (a) Employee exposure levels are so high that
hearing protectors alone may not reliably
reduce noise levels received by the
employee's ear to the levels specified in
Tables G-16 or G-16a of the standard.
Given the present state of the art,
hearing protectors which offer the greatest
attenuation may not reliably be used
when employee exposure levels border on
100 dBA (See OSHA Instruction CPL 2-2.35A,
Appendix.); or
(b) The costs of engineering and/or
administrative controls are less than the
cost of an effective hearing conservation
program.
(2) A control is not reasonably necessary when an
employer has an ongoing hearing conservation
program and the results of audiometric testing
indicate that existing controls and hearing
protectors are adequately protecting employees.
(In making this decision such factors as the
exposure levels in question, the number of
employees tested, and the duration of the
testing program shall be taken into
consideration.)
(3) When employee noise exposures are less than 100
dBA but the employer does not have an ongoing
hearing conservation program or the results of
audiometric testing indicate that the employer's
existing program is not working, the CSHO shall
consider whether:
(a) Reliance on an effective hearing conservation
program would be less costly than engineering
and/or administrative controls.
(b) An effective hearing conservation program can
be established or improvements can be made in
an existing hearing conservation program
which could bring the employer into
compliance with Tables G-16 or G-16a.
(c) Engineering and/or administrative controls
are both technically and economically
feasible.
(4) If noise levels received by the employee's ear
can be reduced to the levels specified in Tables
G-16 or G-16a by means of hearing protectors and
an effective hearing conservation program,
citations under the hearing conservation
shall normally be issued rather than
citations requiring engineering controls. If
improvements in the hearing conservation program
cannot be made or, if made, cannot be expected
to reduce exposure sufficiently and feasible
controls exist, a citation under 1910.95(b)(1)
shall normally be issued.
(5) When hearing protection is required but not used
and employee exposure exceeds the limits of
Table G-16, 29 CFR 1910.95(i)(2)(i) shall be
cited and classified as serious (see (8), below)
whether or not the employer has instituted a
hearing conservation program. 29 CFR 1910.95(a)
shall no longer be cited except in the case of
the oil and gas drilling industry.
NOTE: Citations of 29 CFR 1910.95(i)(2)(ii)(b)
shall also be classified as serious.
C. 3. b. (6) If an employer has instituted a hearing
conservation program and a violation of the
hearing conservation amendment (other than
1910.95 (i)(2)(i) or (i)(2)(ii)(b)) is found, a
citation shall be issued if employee noise
exposures equal or exceed an 8-hour
time-weighted average of 85 dB.
(7) If the employer has not instituted a hearing
conservation program and employee noise
exposures equal or exceed an 8-hour
time-weighted average of 85 dB, a citation for
1910.95(c) only shall be issued.
(8) Violations of 1910.95(i)(2)(i) from the hearing
conservation amendment may be grouped with
violations of 29 CFR 1910.95(b)(1) and
classified as serious when an employee is
exposed to noise levels above the limits of
Table G-l6 and:
(a) Hearing protection is not utilized or is not
adequate to prevent overexposure to an
employee; or
(b) There is evidence of hearing loss which could
reasonably be considered:
1 To be work-related, and
2 To have been preventable, at least to
some degree, if the employer had been
in compliance with the cited
provisions.
(9) When an employee is overexposed but effective
hearing protection is being provided and used,
an effective hearing conservation program has
been implemented and no feasible engineering or
administrative controls exist, a citation shall
not be issued.
c. Violations of the Respirator Standard. When
considering a citation for respirator violations, the
following guidelines shall be observed:
(1) In Situations Where Overexposure Does Not
Occur. Where an overexposure has not been
established:
C. 3. c. (1) (a) But an improper type of respirator is
being used (e.g., a dust respirator being
used to reduce exposure to organic
vapors), a citation under 29 CFR
1910.134(b)(2) shall be issued, provided
the CSHO documents that an overexposure is
possible.
(b) And one or more of the other requirements of
29 CFR 1910.134 is not being met; e.g., an
unapproved respirator is being used to reduce
exposure to toxic dusts, generally a de minimis
violation shall be recorded in accordance
with OSHA procedures. (Note that this policy
does not include emergency use
respirators.) The CSHO shall advise the
employer of the elements of a good respirator
program as required under 29 CFR 1910.134.
(c) In exceptional circumstances a citation
may be warranted if an adverse health
condition due to the respirator itself could
be supported and documented. Examples may
include a dirty respirator that is causing
dermatitis, a worker's health being jeopardized
by wearing a respirator due to an inadequately
evaluated medical condition or a significant
ingestion hazard created by an improperly
cleaned respirator.
(2) In Situations Where Overexposure Does Occur.
In cases where an overexposure to an air
contaminant has been established, the following
principles apply to citations of 1910.134:
(a) 29 CFR 1910.134(a)(2) is the general section
requiring employers to provide respirators ".
. . when such equipment is necessary to
protect the health of the employee" and
requiring the establishment and maintenance
of a respiratory protection program which
meets the requirements outlined in 29 CFR
1910.134(b). Thus, if no respiratory program
at all has been established, 1910.134(a)(2)
alone shall be cited; if a program has been
established and some, but not all, of the
requirements under 1910.134(b) are being met,
the specific standards under 1910. 134(b)
that are applicable shall be cited.
(b) An acceptable respiratory protection program
includes all of the elements of 29 CFR
1910.134; however, the standard is structured
such that essentially the same requirement is
often specified in more than one section. In
these cases, the section which most
adequately describes the violation shall be
cited.
C. 3. d. Additive and Synergistic Effects.
(1) Substances which have a known additive effect
and, therefore, result in a greater
probability/severity of risk when found in
combination shall be evaluated using the formula
found in 29 CFR 1910.1000(d)(2). The use of
this formula requires that the exposures have an
additive effect on the same body organ or
system.
(2) If the CSHO suspects that synergistic effects
are possible, it shall be brought to the
attention of the supervisor, who shall refer the
question to the Regional Administrator. If it
is decided that there is a synergistic effect of
the substances found together, the violations
shall be grouped, when appropriate, for purposes
of increasing the violation classification
severity and/or the penalty.
e. Absorption and Ingestion Hazards. The
following guidelines apply when citing absorption
and ingestion violations. Such citations do
not depend on measurements of airborne
concentrations, but shall normally be supported by
wipe sampling.
(1) Citations under 29 CFR 1910.132, 1910.141 and/or
Section 5(a)(1) may be issued when there is
reasonable probability that employees will be
exposed to these hazards.
(2) Where, for any substance, a serious hazard is
determined to exist due to the potential of
ingestion or absorption of the substance for
reasons other than the consumption of
contaminated food or drink (e.g., smoking
materials contaminated with the toxic
substance), a serious citation shall be
considered under Section 5(a)(1) of the Act.
f. Biological Monitoring. If the employer has been
conducting biological monitoring, the CSHO shall
evaluate the results of such testing. The results may
assist in determining whether a significant quantity of
the toxic material is being ingested or absorbed
through the skin.
4. Writing Citations.
a. General. Section 9 of the Act controls the writing
of citations.
(1) Section 9(a). ". . . the Secretary or his
authorized representative . . . shall with
reasonable promptness issue a citation to the
employer." To facilitate the prompt issuance of
citations, the Area Director may issue citations
which are unrelated to health inspection air
sampling, prior to receipt of sampling results.
C. 4. a. (2) Section 9(c). "No citation may be issued .
. . after the expiration of six months following
the occurrence of any violation." Accordingly,
a citation shall not be issued where any
violation alleged therein last occurred 6 months
or more prior to the date on which the citation
is actually signed and dated. Where the actions
or omissions of the employer concealed the
existence of the violation, the time limitation
is suspended until such time that OSHA learns or
could have learned of the violation. The
Regional Solicitor shall be consulted in such
cases.
b. Alternative Standards.
(1) In rare cases, the same factual situation may
present a possible violation of more than one
standard. For example, the facts which support
a violation of 29 CFR 1910.28(a)(1) may also
support a violation of 1910.132(a) if no
scaffolding is provided when it should be and
the use of safety belts is not required by the
employer.
(2) Where it appears that more than one standard is
applicable to a given factual situation and that
compliance with any of the applicable standards
would effectively eliminate the hazard, it is
permissible to cite alternative standards using
the words "in the alternative." A reference in
the citation to each of the standards involved
shall be accompanied by a separate Alleged
Violation Description (AVD) which clearly alleges
all of the necessary elements of a violation of
that standard. Only one penalty shall be
proposed for the violative condition.
5. Combining and Grouping of Violations.
a. Combining. Violations of a single standard having
the same classification found during the inspection of
an establishment or worksite generally shall be
combined into one alleged citation item. Different
options of the same standard shall normally also be
combined. Each instance of the violation shall be
separately set out within that item of the citation.
Other-than-serious violations of a standard may be
combined with serious violations of the same standard
when appropriate.
NOTE: Except for standards which deal with
multiple hazards (e.g., Tables Z-1, Z-2
and Z-3 cited under 29 CFR 1910.1000 (a),
(b), or (c)), the same standard may not be
cited more than once on a single citation.
The same standard may be cited on
different citations on the same inspection,
however.
b. Grouping. When a source of a hazard is
identified which involves interrelated violations of
different standards, the violations may be grouped into
a single item. The following situations normally call
for grouping violations:
C. 5. b. (1) Grouping Related Violations. When the CSHO
believes that violations classified either as
serious or as other-than-serious are so closely
related as to constitute a single hazardous
condition.
(2) Grouping Other-Than-Serious Violations Where
Grouping Results in a Serious Violation. When
two or more individual violations are found
which, if considered individually represent
other-than-serious violations, but if grouped
create a substantial probability of death or
serious physical harm.
(3) Where Grouping Results in Higher Gravity
Other-Than-Serious Violation. Where the CSHO
finds during the course of the inspection that a
number of other-than-serious violations are
present in the same piece of equipment which,
considered in relation to each other affect the
overall gravity of possible injury resulting
from an accident involving the combined
violations.
(4) Violations of Posting and Recordkeeping
Requirements. Violations of the posting and
recordkeeping requirements which involve the
same document; e.g., OSHA-200 Form was not
posted or maintained. (See Chapter IV, C.2.n.
for penalty amounts.)
(5) Penalties for Grouped Violations. If
penalties are to be proposed for grouped
violations, the penalty shall be written across
from the first violation item appearing on the
OSHA-2.
c. When Not to Group. Times when grouping is normally
inappropriate.
(1) Multiple Inspections. Violations discovered
in multiple inspections of a single
establishment or worksite may not be grouped.
An inspection in the same establishment or at
the same worksite shall be considered a single
inspection even if it continues for a period of
more than one day or is discontinued with the
intention of resuming it after a short period of
time if only one OSHA-1 is completed.
(2) Separate Establishments of the Same
Employer. Where inspections are conducted,
either at the same time or different times, at
two establishments of the same employer and
instances of the same violation are discovered
during each inspection, the employer shall be
issued separate citations for each
establishment. The violations shall not be
grouped.
(3) General Duty Clause Violations. Because
Section 5(a)(1) of the Act is cited so as to
cover all aspects of a serious hazard for which
no standard exists, no grouping of separate
Section 5(a)(1) violations is permitted. This
provision, however, does not prohibit grouping a
Section 5(a)(1) violation with a related violation
of a specific standard.
(4) Egregious Violations. Violations which are
proposed as violation-by-violation citations
shall not normally be combined or grouped.
(See OSHA Instruction CPL 2.80.)
C. 6. This paragraph has been replaced by a revised multi-employer policy
contained in OSHA Instruction CPL 2-0.124.
Multiemployer Worksites. On multiemployer worksites, both construction
and non-construction, citations normally shall be issued to employers whose
employees are Vexposed to hazards (the exposing employer).
a. Additionally, the following employers normally
shall be cited, whether or not their own employees
are exposed, but see C.2.c.(2)(a)2 of this
chapter for Section 5(a)(1) violation guidance:
(1) The employer who actually creates the hazard
(the creating employer);
(2) The employer who is responsible, by contract or
through actual practice, for safety and health
conditions on the worksite; i.e., the employer
who has the authority for ensuring that the
hazardous condition is corrected (the controlling
employer);
(3) The employer who has the responsibility for
actually correcting the hazard (the correcting
employer).
b. Prior to issuing citations to an exposing employer,
it must first be determined whether the available
facts indicate that employer has a legitimate
defense to the citation, as set forth below:
(1) The employer did not create the hazard;
(2) The employer did not have the responsibility or
the authority to have the hazard corrected;
(3) The employer did not have the ability to correct
or remove the hazard;
(4) The employer can demonstrate that the creating,
the controlling and/or the correcting employers,
as appropriate, have been specifically notified
of the hazards to which his/her employees are
exposed;
(5) The employer has instructed his/her employees to
recognize the hazard and, where necessary,
informed them how to avoid the dangers associated
with it.
(a) Where feasible, an exposing employer must
have taken appropriate alternative means of
protecting employees from the hazard.
(b) When extreme circumstances justify it, the
exposing employer shall have removed his/her
employees from the job to avoid citation.
C. 6. c. If an exposing employer meets all these defenses,
that employer shall not be cited. If all employers
on a worksite with employees exposed to a hazard
meet these conditions, then the citation shall be
issued only to the employers who are responsible
for creating the hazard and/or who are in the best
position to correct the hazard or to ensure its
correction. In such circumstances the controlling
employer and/or the hazard-creating employer shall
be cited even though no employees of those
employers are exposed to the violative condition.
Penalties for such citations shall be appropriately
calculated, using the exposed employees of all
employers as the number of employees for probability
assessment.
7. Employer/Employee Responsibilities.
a. Section 5(b) of the Act states: "Each employee shall
comply with occupational safety and health standards
and all rules, regulations, and orders issued pursuant
to the Act which are applicable to his own actions and
conduct." The Act does not provide for the issuance of
citations or the proposal of penalties against
employees. Employers are responsible for employee
compliance with the standards.
b. In cases where the CSHO determines that employees are
systematically refusing to comply with a standard
applicable to their own actions and conduct, the matter
shall be referred to the Area Director who shall
consult with the Regional Administrator.
c. Under no circumstances is the CSHO to become involved
in an onsite dispute involving labor-management
issues or interpretation of collective-bargaining
agreements. The CSHO is expected to obtain enough
information to understand whether the employer is using
all appropriate authority to ensure compliance with the
Act. Concerted refusals to comply will not bar the
issuance of an appropriate citation where the employer
has failed to exercise full authority to the maximum
extent reasonable, including discipline and discharge.
8. Affirmative Defenses.
a. Definition. An affirmative defense is any matter
which, if established by the employer, will excuse the
employer from a violation which has otherwise been
proved by the CSHO.
b. Burden of Proof. Although affirmative defenses
must be proved by the employer at the time of the
hearing, OSHA must be prepared to respond
whenever the employer is likely to raise or actually
does raise an argument supporting such a defense. The
CSHO, therefore, shall keep in mind the potential
affirmative defenses that the employer may make and
attempt to gather contrary evidence when a statement
made during the inspection fairly raises a defense.
The CSHO should bring the documentation of the hazards
and facts related to possible affirmative defenses to
the attention of the Assistant Area Director. Where it
appears that each and every element of an affirmative
defense is present, the Area Director may decide that a
citation is not warranted.
C. 8. c. Explanations. The following are explanations
of the more common affirmative defenses with which
the CSHO shall become familiar. There are other
affirmative defenses besides these, but they are
less frequently raised or are such that the facts
which can be gathered during the inspection are
minimal.
(1) Unpreventable Employee Misconduct or "Isolated
Event". The violative condition was:
(a) Unknown to the employer; and
(b) In violation of an adequate work rule which
was effectively communicated and uniformly
enforced.
EXAMPLE: An unguarded table saw is observed.
The saw, however, has a guard which is reattached
while the CSHO watches. Facts which the CSHO shall
document may include: Who removed the guard and
why? Did the employer know that the guard had been
removed? How long or how often had the saw been
used without guards? Did the employer have a work
rule that the saw guards not be removed? How was
the work rule communicated? Was the work rule
enforced?
(2) Impossibility. Compliance with the
requirements of a standard is:
(a) Functionally impossible or would prevent
performances of required work; and
(b) There are no alternative means of employee
protection.
EXAMPLE: During the course of the inspection
an unguarded table saw is observed. The employer
states that the nature of its work makes a guard
unworkable. Facts which the CSHO shall document
may include: Would a guard make performance of the
work impossible or merely more difficult? Could a
guard be used part of the time? Has the employer
attempted to use guards? Has the employer considered
alternative means or methods of avoiding or
reducing the hazard?
C. 8. c. (3) Greater Hazard. Compliance with a standard
would result in greater hazards to employees
than noncompliance and:
(a) There are no alternative means of employee
protection; and
(b) An application of a variance would be
inappropriate.
EXAMPLE: The employer indicates that a saw
guard had been removed because it caused particles
to be thrown into the operator's face. Facts which
the CSHO shall consider may include: Was the guard
used properly? Would a different type of guard
eliminate the problem? How often was the operator
struck by particles and what kind of injuries
resulted? Would safety glasses, a face mask, or a
transparent shelf attached to the saw prevent
injury? Was operator technique at fault and did
the employer attempt to correct it? Was a variance
sought?
(4) Multiemployer Worksites. Refer to C.6. of
this chapter.
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