Navigating OSHA Challenges: Why Specialized Counsel is Your Best Defense

The Occupational Safety and Health Administration (OSHA) sets the standards for ensuring safe and healthful working conditions across the United States. But when an OSHA citation lands on your desk, the consequences can reach far beyond fines. Mishandling a citation can trigger litigation, financial loss, and reputational damage.

Choosing the right legal partner makes all the difference. In this article, we'll explore why working with specialized OSHA counsel is a smart business move, where general legal advisors can fall short, and how expert representation can protect your organization from costly ripple effects.

Why OSHA Expertise Matters

OSHA was established under the Occupational Safety and Health Act of 1970 to prevent work-related injuries, illnesses, and fatalities. Its reach is extensive, covering everything from hazard communication to fall protection across construction, manufacturing, and other industries.
Violations can range from “serious” to “willful,” with penalties that may reach hundreds of thousands of dollars per infraction. Beyond the citation itself, investigations and potential lawsuits can follow. Navigating this landscape demands expertise tailored to OSHA’s unique framework.

In a recent OSHA Review Commission decision (Docket No. 23-1898), the importance of demonstrating a proactive and well-documented safety program was reaffirmed, highlighting how preparation and compliance can directly impact the outcome of a case.

The Value of Specialized Counsel

Hiring a lawyer who specializes in OSHA law is a strategic necessity. Here's why:

• In-Depth Knowledge of Regulations and Updates: OSHA standards are intricate and evolve frequently. Specialized counsel stays abreast of changes, such as updates to the Process Safety Management standard or new guidelines on respiratory protection. They understand the subtleties, like how a "de minimis" violation differs from a "repeat" one, and they can craft defenses that leverage these details to reduce or eliminate penalties.
• Experience with OSHA Processes: From informal conferences to formal appeals before the Occupational Safety and Health Review Commission, specialized attorneys know how to manage each step effectively. They understand how to negotiate abatements, apply procedural defenses, and achieve favorable outcomes that generalists may overlook.
• Strategic Risk Assessment: Beyond defending a citation, specialists evaluate broader risks. They can conduct mock OSHA audits, advise on compliance programs, and integrate OSHA strategies into your overall risk management, potentially preventing future issues. This foresight is crucial in multi-employer scenarios, as evidenced by related precedents that emphasize shared liability.
• Industry-Specific Insights: Many OSHA specialists have backgrounds in construction, energy, or healthcare, enabling them to tailor their advice to your sector's unique hazards. This can mean the difference between a quick resolution and prolonged battles.

In short, specialized OSHA counsel turns potential crises into manageable challenges, helping businesses protect people, productivity, and reputation.

Why General Counsel Isn't Enough

General counsel is essential for everyday business needs, handling everything from contracts and employment matters to intellectual property. But OSHA issues require a level of depth that goes beyond general practice.

• Complexity of OSHA Regulations: OSHA's Code of Federal Regulations (29 CFR) spans thousands of pages, with standards like 1910 (General Industry) and 1926 (Construction) filled with technical requirements. General counsel might not be familiar with nuances such as the "multi-employer worksite" doctrine, where liability can shift based on control over the site, or the specifics of recordkeeping under 1904.

A 1975 decision by the Second Circuit Court of Appeals (513 F.2d 1032) addressed occupational safety in construction, holding that employers creating hazards are liable even to non-employees, a subtlety that requires specialized knowledge to navigate.

• Lack of Specialized Experience: OSHA cases involve unique procedures, like the 15-day contest period for citations or interactions with area directors. Without regular exposure, general counsel might miss deadlines or fail to gather critical evidence, such as witness statements from safety inspections. A 1996 decision by the Occupational Safety and Health Review Commission (17 OSHC 1869) exemplifies this, where the employer's demonstration of an effective safety program, including rules, training, monitoring, and enforcement, led to a successful defense against a serious violation, relying on the four elements of unavoidable employee misconduct.
• Interplay with Other Laws: OSHA doesn't exist in a vacuum. Violations can intersect with laws like the Whistleblower Protection Act or state workers' compensation statutes. Generalists might not anticipate how an OSHA finding could bolster a wrongful death claim or influence EPA enforcement.

A case cited in a 1973 Eighth Circuit decision (487 F.2d 438) highlights procedural intricacies, affirming that citations can mandate abatement without penalties, which could impact how cases escalate to broader litigation if not handled expertly.

The issue isn't capability; it's specialization. Just as you wouldn't ask a family doctor to perform brain surgery, relying on general counsel for OSHA can lead to suboptimal outcomes.

The real danger of inadequate representation isn't just the citation; it's the domino effect on wider litigation. Misunderstanding OSHA's intricacies can amplify risks in several ways:

• Civil Lawsuits and Third-Party Claims: An OSHA violation can serve as prima facie evidence of negligence in personal injury lawsuits. For example, if a worker is injured due to a fall protection failure (cited under 1926.501), plaintiffs’ attorneys can use the citation to argue breach of duty, potentially leading to multimillion-dollar verdicts. Specialized counsel knows how to challenge the citation's validity early, weakening such claims, as in Kokosing, where reasonable diligence negated liability.
• Criminal Prosecutions: Willful violations causing death can result in criminal charges under the OSH Act or even manslaughter statutes. General counsel unfamiliar with OSHA's "willful" criteria, requiring knowledge of the hazard and deliberate disregard, might not build a robust defense, exposing executives to jail time. A 1974 decision by the Seventh Circuit Court of Appeals (501 F.2d 1196) emphasizes that liability hinges on foreseeability, a defense that could mitigate escalation to criminal proceedings if argued properly.
• Insurance and Financial Repercussions: Insurers often deny coverage for OSHA-related claims if compliance lapses are deemed intentional. Poor handling can hike premiums or void policies, while reputational harm from publicized violations can deter clients and talent.
• Regulatory Cascades: A single citation can trigger audits by other agencies, such as the Department of Labor or state equivalents. Nuanced errors, such as failing to argue for a "good faith" reduction in penalties, can set precedents that invite further scrutiny. In Truax-Traer, the affirmation of abatement orders without penalties shows how procedural missteps can prolong regulatory involvement and spawn additional lawsuits.

In short, what starts as a regulatory slap on the wrist can escalate into a full-blown legal storm, costing businesses far more in time, money, and goodwill.

Protecting Your Business Starts with the Right Partner

When facing OSHA challenges, the choice is clear: specialized counsel provides the precision and foresight that general representation often lacks. By understanding the fine print of regulations, as highlighted by the cases in this article, the right counsel can mitigate penalties, streamline compliance, and protect your organization from the far-reaching effects of an OSHA

AssuredPartners works alongside businesses across industries to connect them with resources that strengthen workplace safety, reduce risk, and support compliance. If you've received an OSHA citation or want to strengthen your safety program, our team can help.

Disclaimer:
The information contained herein is offered as insurance industry guidance and provided as an overview of current market risks and available coverages and is intended for discussion purposes only. This publication is not intended to offer financial, tax, legal or client-specific insurance or risk management advice. General insurance descriptions contained herein do not include complete insurance policy definitions, terms, and/or conditions, and should not be relied on for coverage interpretation. Actual insurance policies must always be consulted for full coverage details and analysis.