OSHA Defense Lawyers and How They Help Employers

An unexpected OSHA visit can halt production and expose a company to steep penalties. Inspectors move quickly to collect maintenance records and employee statements, then expand the inspection area to cite hazards they spot in passing. OSHA defense lawyers act immediately to control access and manage what becomes part of the official record. They help employers respond within legal limits while maintaining credibility with regulators. Employers who work with attorneys early on can keep the inspection focused and prevent statements or documents from increasing liability.

When OSHA Shows Up: First Moves

When OSHA inspectors arrive without warning, the first instinct might be to cooperate. But speaking too soon or handing over the wrong record can lock in incriminating statements that bind the company and widen the inspection. ​​

Step One: Make Your Attorney Your Single Point of Contact

Employers who contact an OSHA defense lawyer before answering questions or transferring records route all requests through counsel, so counsel controls communications and keeps them in writing. Written channels lower the risk that an employee will make an off-the-cuff remark that inspectors might use to justify expanding the inspection. OSHA defense attorneys can also schedule interviews at times when they are able to attend, which gives managers time to prepare and avoids one-on-one questioning.

Step Two: Keep Your Own Record of Site Conditions

Documenting current conditions creates a timestamped record you can compare to OSHA’s file.  Photos can show the equipment and layout of the workspace, security camera footage can reveal what happened in the area during the window at issue, and access logs can tie people to the area at specific times. A detailed internal record of the site can help resolve disputes about what happened that day and guides defense strategy and abatement planning if citations follow.

Step Three: Set Clear Limits on What Inspectors Can Access

Inspectors sometimes ask to enter areas unrelated to the issue that triggered the visit.  Counsel can restrict entry to that location and review each document request to confirm it relates to the same event. A defined boundary keeps the visit short and prevents it from turning into a wider search.

Inspections: Consent, Scope, Interviews

Consent or Warrant

When inspectors arrive, employers can choose to grant access or wait for the inspectors to get a warrant. Consent to an inspection can indicate cooperation, and makes sense when the issue is limited in scope and the site is already visible from the outside.

Refusing consent and forcing OSHA inspectors to get a warrant gives the company time to prepare and preserves the right to challenge the inspection’s scope later. Each decision carries trade-offs that depend on the facts and timing, so counsel should guide that call in real time.

Scope

The scope of an OSHA inspection is defined and limited by the warrant or by the written consent the employer provides. Most OSHA inspections start with a complaint or a reported incident tied to a specific area or piece of equipment. But once inside, inspectors will try to expand their review to other operations or hazards they notice in passing by citing the “plain view” doctrine.

The plain view doctrine lets OSHA cite hazards visible from areas included in the warrant or consent, but does not permit inspectors to enter closed rooms or cross into different departments. A company representative or attorney should accompany the inspector to document where they walk and what areas are in plain view to make sure the inspection does not drift beyond its original scope.

Interviews

OSHA can interview employees to verify hazards observed on site or the company’s safety practices. Non-supervisory employees can decline to speak, and even when they do speak, their statements generally do not bind the company. Supervisors and managers, however, are considered the company’s official representatives; they are required to answer questions and anything they say can be used to support a citation. Employers should coordinate all supervisor and manager interviews through counsel and have counsel present to control risk and preserve the official record.

Violations and Citations: Strategy and Deadlines

Responding to a Citation

Once OSHA issues a citation, employers have 15-business-day to respond. Counsel should review each alleged violation and the evidence OSHA relied on, and employers should then verify whether the citation reflects actual workplace conditions. The reply can take the form of a Notice of Contest (NOC), which disputes the citation or proposed penalties and preserves the right to challenge OSHA’s findings before the Occupational Safety and Health Review Commission. Alternatively, the employer can submit documentation showing that the alleged hazards have been corrected or outlining a plan to correct them.

Employers that thoroughly review citations and prepare documented responses preserve the company’s legal defenses and avoid statements that increase liability.

Contesting, Negotiating, and Abatement

Employers who wish to dispute a citation need to file a Notice of Contest with OSHA within 15 business days of receiving the citation. Before filing, some employers request an informal conference with the OSHA area office, where the employer can present evidence of corrective action and potentially negotiate a reduction in penalties or a reclassification of the citation.

Attorneys should review proposed settlement terms and negotiate to eliminate language that could be interpreted as an admission of a violation or an acknowledgment of negligence. Non-admission language confirms that the employer will correct violations and pay a penalty, but does not acknowledge fault.

Evaluating Downstream Risks

When OSHA issues a citation, the consequences extend beyond immediate penalties. Counsel reviews the citation for how it might affect future exposure. Civil lawsuits can follow when OSHA findings indicate the company did not meet safety requirements and some contracts include terms that penalize noncompliance with safety laws. Being placed in OSHA’s Severe Violator Enforcement Program brings closer scrutiny on future inspections.

Building and Proving Defenses at the Review Commission

When a company contests a citation, the Occupational Safety and Health Review Commission reviews the evidence and testimony from the inspection and citation process. Counsel gathers documents, internal records, training logs, and maintenance reports to show compliance efforts and limit exposure. Attorneys prepare witnesses and technical experts to present facts clearly and persuasively, and emphasize observations that support defenses.

Some of the most frequently invoked defenses are:

• Unpreventable Employee Misconduct: OSHA lawyers document all of the employer’s safety rules and training programs to show that employers violated OSHA guidelines despite proactive measures. Supervisors provide testimony on employee instructions and oversight practices to demonstrate the company’s efforts to prevent violations.

• Greater Hazard Defense: Records and expert analysis illustrate that correcting the cited hazard would have created a more serious risk. Attorneys present operational constraints and safety trade-offs to show why immediate abatement of the violation was impractical.

• Feasibility / Infeasibility Defense: Documentation shows that compliance or abatement could not be completed under the circumstances. Technical reports describe physical limitations, including machinery or facility constraints, or operational barriers that prevented safe correction. Expert testimony explains why available resources or technology could not achieve compliance without creating new hazards or halting core company operations.

Appeals and Judicial Review

After the Review Commission issues a decision, employers can seek judicial review in a federal circuit court. The Commission’s hearing record provides the foundation for court review, so attorneys need to make sure to present evidence clearly and raise timely objections during the hearing to preserve issues for appeal. Attorneys challenge the Commission’s legal rulings and any procedural or evidentiary mistakes, and cite case law that supports why the decision should be modified or overturned.

Federal courts defer to the Commission’s factual findings if supported by substantial evidence but review legal interpretations independently. Attorneys focus on distinguishing mistakes in the law from disagreements over facts to make a stronger case on appeal.

Recordkeeping, Reporting, and Recurrence Prevention

Recordkeeping

Employers who keep accurate injury logs and safety records have concrete evidence to defend against OSHA citations. The OSHA 300 Log summarizes each work-related injury or illness for the year, including the employee’s job and the severity of the case. The OSHA 301 Form provides a detailed account of each incident, describing how it happened and the steps taken afterward. Employers should review logs and reports to make sure they reflect what actually occurred on site. Counsel can identify gaps and show how to document corrections without increasing liability.

Reporting

Employers are required to submit reports of work-related injuries and hazards to OSHA or the applicable state OSHA agency. They should complete the OSHA 301 Form for each recordable case and update the OSHA 300 Log accordingly and submit them within the deadlines set by federal or state law. Keeping accurate copies provides a clear record that shows the company stayed compliant, which supports the company during inspections and prevents penalties for late or incomplete reporting.

Recurrence Prevention

Employers who review past incidents are better able to spot hazards before they cause new violations. When corrective actions are documented and tracked, it shows OSHA that the company takes compliance seriously. Employers should work with counsel to record each corrective step, including who completed it and when, in case OSHA returns for another inspection.

Work With Conn Maciel Carey’s National OSHA • Workplace Safety Practice Group

Employers facing an OSHA inspection or citation should contact counsel immediately. Our attorneys can control communications with inspectors and guide internal investigations to protect the company’s record. We can help meet deadlines and respond to citations without creating statements that increase liability. Our team can also coordinate walkthroughs and interviews to make sure that inspections stay focused and that manager and supervisor responses are truthful, but limited to what is legally required to avoid expanding liability.

Contact our OSHA • Workplace Safety Practice Group at (202) 715-6244 or send us an email to learn more.

This article is for informational purposes only and does not constitute legal advice. While we strive to ensure accuracy, laws and regulations may change, and unintended errors may occur. This content may not address every aspect of the relevant legal requirements. For guidance on your specific situation, consult your attorney.