In the context of the Occupational Safety and Health Administration (OSHA), abatement means “action by an employer to comply with a cited standard or regulation or to eliminate a recognized hazard identified by OSHA during an inspection.”
For an employer who has been cited for an OSHA violation, the cost and process of fixing the hazards that OSHA identified can be more challenging than handling the fine and other issues associated with the citation itself.
For this reason, among others, it often makes sense to contest the citation. While paying a fine may seem economical in the short term, the hidden costs of an OSHA citation – from abatement and the mark against your company’s reputation – may be more expensive than you realize.
What to Do Once a Citation Is Received
Once cited, an employer may:
- Pay the fine and correct violations by the date set in the OSHA citation;
- Request an Informal Conference within 15 working days from the time you received the OSHA citation with the OSHA Area Director to discuss the violations and/or the abatement measures and deadlines; and/or
- File a written “Notice of Intent to Contest” with the OSHA Area Director within 15 working days from the time you received the OSHA citation. Even if you are negotiating with the OSHA Area Director through an Informal Conference, you should still submit your written notice to preserve your right to formally contest the citation and/or continue negotiations past the 15-working day deadline.
The OSHA Abatement Process
OSHA requires employers to abate hazards and has a five-step process for correcting and showing the hazards have been corrected.
The steps include:
- Fix the hazard. OSHA requires hazards to be corrected quickly. If a hazard takes more than 90 days to correct, you may be required to have an abatement plan. The citation will indicate if an abatement plan is required.
- Certify in a letter that you have corrected the hazard within 10 days after the abatement deadline. The letter must include information about the inspection and citation numbers of each violation, a statement of how and on what date the hazard was abated, and other information.
- Provide documents that verify the abatement has been completed for each violation. Documents demonstrating that abatement is complete may include evidence of the purchase or repair of equipment, photographic or video evidence of abatement, or other written records.
- Notify employees who were exposed to the hazard and their representatives by posting a copy of the certification letter and supporting documents sent to OSHA near the place where the violation occurred.
- For serious, repeat, and willful violations involving movable equipment, the employer must attach a warning tag or a copy of the citation to the operating controls to warn employees of the hazard. The warning tag must remain attached to the equipment until the violation has been abated or the equipment is removed from service.
Failure to comply with these steps can result in a failure-to-abate citation from OSHA, even if the actual hazard is corrected. For each day an employer fails to abate a citation, the penalty increases.
How Long Does an Employer Have to Abate an OSHA Violation?
Specific abatement deadlines will be identified in the OSHA citation. The OSHA compliance officer may have also discussed abatement measures and timelines following the inspection.
If OSHA requires an abatement plan, the employer must submit an abatement plan for each cited violation within 25 calendar days of the final order date.
If you have concerns about meeting abatement deadlines, an Informal Conference with the OSHA Area Director is the best venue to discuss your options. You should have your attorney present at this conference. One pitfall to settling a case at an informal settlement conference is that many employers do not understand their abatement obligations following a settlement, which can lead to costly failure-to-abate citations down the road. Having an experienced OSHA attorney present at the informal settlement conference can help you avoid this pitfall.
Please be aware that the time limits for abatement are different than the deadlines to file a contest to an OSHA citation or request an Informal Conference. Failure to contest an OSHA citation by the deadline will most often forfeit your right to negotiate abatement measures and deadlines.
What If You Can’t Abate the Hazard by the Deadline?
Abatement deadlines are determined based on the information available when the OSHA citation was issued. If you are unable to meet the abatement deadline due to uncontrollable circumstances, you can submit a written Petition for Modification of Abatement (PMA) to the OSHA Area Director.
While the written petition can be submitted no later than one working day after the abatement deadline, it is better to submit it before the abatement deadline.
To be considered, the PMA should include the following details:
- Actions taken to achieve compliance and the respective dates
- The additional time required for compliance
- An explanation of why this additional time is necessary
- Interim measures in place to protect employees from the cited hazards until abatement
- A certification indicating that the petition has been posted, the posting date, and, if applicable, a statement that the petition has been provided to a representative of the affected employees. The petition should remain posted for 10 working days, during which employees can submit objections.
The OSHA Area Director has the authority to approve or reject a PMA. An OSHA defense attorney can assist you in preparing your petition.
If a PMA is approved, a compliance officer may conduct a follow-up inspection to verify that the conditions match the description in your PMA, and that you are making good-faith efforts toward abatement.
Does OSHA Require Employers to Post OSHA Citations and Abatement Notices?
When you receive an OSHA citation, you must post it (or a copy of it) at or near the place where each violation occurred to make employees aware of the hazards to which they may be exposed. The citation must remain posted for three working days or until the hazard is abated, whichever is longer.
Once the hazard is corrected, the abatement certification letter must be posted at the location where the violation appeared and the corrective action took place, or employees must otherwise be effectively informed about abatement activities.
In addition, OSHA publishes information on its inspection and injury reports online, as required by the Freedom of Information Act.
What If OSHA Doesn’t Accept Abatement Efforts After a Citation?
If OSHA is not satisfied with your abatement efforts or you fail to submit abatement verification (certification, documentation, abatement plans, or progress reports) as required, you may receive an additional “failure to abate” citation.
Each abatement violation can result in a separate citation. As noted above, the penalties for failure-to-abate citation depend on the seriousness of the original hazard and multiply by the number of days that the violation has continued unabated.
You can appeal a citation for failure-to-abate just as you would the original citation.