OSHA Defense
Understanding Your Defenses
OSHA citations can have lasting effects on employers. A “serious” violation may lead to future citations being classified as “willful” or “repeat.” Employers should consult experienced OSHA defense counsel to understand available defenses. Our attorney, Ian McNeill, is knowledgeable in these defenses, including the following:
Multi Employer Worksite Defense
On complex construction and industrial sites, multiple employers often operate simultaneously, each with different roles and levels of control. Under OSHA’s multi employer worksite doctrine, not every employer can be held responsible for every alleged hazard. An experienced OSHA defense attorney can analyze whether an employer was a creating, exposing, correcting, or controlling employer and challenge citations where OSHA has improperly extended liability. By carefully examining contractual responsibilities, site control, and actual authority over the cited condition, counsel can often limit or eliminate an employer’s exposure on multi employer worksites.
Unavoidable Employee Misconduct
Even the most safety conscious employers can face OSHA citations stemming from isolated employee misconduct that violates established rules. The unavoidable employee misconduct defense applies when an employer has implemented effective safety policies, adequately trained employees, consistently enforced its rules, and taken reasonable steps to discover and correct violations. A skilled OSHA attorney can help demonstrate that the alleged violation was the result of unforeseeable employee behavior—not a systemic failure—thereby undermining OSHA’s case and protecting the employer from unwarranted penalties.
Impossibility of Compliance
In certain circumstances, strict compliance with an OSHA standard may be technologically or functionally impossible under the specific conditions of the work being performed. The impossibility of compliance defense focuses on whether compliance was infeasible and whether alternative protective measures were used to safeguard employees. An experienced OSHA lawyer can evaluate the cited standard, the work process involved, and available alternatives to show that the employer took reasonable steps to protect workers despite legitimate constraints that made literal compliance impracticable.
Independent Contractors Versus Employees
OSHA standards apply to employers and their employees—not to truly independent contractors. Misclassification issues frequently arise in industries that rely on subcontractors, staffing agencies, or specialized trades. An OSHA defense attorney can assess the nature of the working relationship, including control, supervision, and contractual terms, to determine whether OSHA has improperly treated independent contractors as employees. Successfully asserting this defense can significantly narrow the scope of an OSHA citation and reduce an employer’s overall exposure.
