Effectiveness of the Occupational Safety and Health

Administration Citations
Satish B. Mohan1 and Bryan D. Niles2
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Abstract: Construction safety is gaining recognition as a keystone of the construction process. The increase in both insurance costs and
workers’ compensation makes it necessary to eliminate worksite accidents. The Occupational Safety and Health Act of 1970 was
established to provide guidelines for safe worksite practices and to ensure the safety of the workers. Often, the citations that are issued to
the employers by the Occupational Safety and Health Administration 共OSHA兲 compliance officers are disputed and brought before the
Occupational Safety and Health Review Commission 共OSHRC兲 to decide if the citations were representative of actual violations. This
process results in lengthy court cases and increased cost due to the cumulative costs of legal and other services. Two hundred fifty-five
OSHA citations were decided by the OSHRC during the years 1991–1993. These 255 cases included 884 violations of OSHA Standards
29 CRF 1926. Out of these 884 violations, 56% were affirmed, 18% were modified, and 26% were vacated by the OSHRC. The most
frequently contested violations belonged to Subpart D—Occupational Health and Environmental Controls 共118 violations兲, Subpart
P—Excavations 共103 violations兲, and Subpart K—Electrical 共90 violations兲. In the majority of cases, the arguments centered around the
vagueness in the interpretation of OSHA standards. Several standards, for example, simply read that the employer must provide safety
equipment. While the employer interpreted this to mean ‘‘make available,’’ OSHA interpreted it to mean ‘‘require use of.’’ Also, the large
size of each of the standards makes it very difficult for middle managers who supervise safety at worksites to study and comply with each
and every standard. In spite of the best worksite safety program provided by the employers, it is highly unlikely that an OSHRC
compliance officer would depart any given worksite without citing a minimum of three violations. This statistic makes employers wary of
the visiting OSHRC compliance officer. The research conducted at the Construction Safety and Health Institute, State University of New
York at Buffalo, has analyzed three consecutive years of OSHRC decisions, with the following objectives: 共1兲 guiding the employers in
interpreting OSHA standards as OSHA and OSHRC see them; 共2兲 providing a convincing discussion on the fact that OSHA should revisit
its standards with an aim toward clarity; and 共3兲 establishing a decision model that can be used by the contesting parties to avoid OSHA
citations.
DOI: 10.1061/共ASCE兲1084-0680共2002兲7:2共85兲
CE Database keywords: Occupational Safety and Health Administration; Construction industry; Occupational safety.

Introduction
Up until 1970, there were no laws that required safety of the
employees at their worksites. At that time, the Occupational
Safety and Health Administration 共OSHA兲 was formed to estab-
lish a safe workplace, which is defined as free of both health
hazards and dangerous conditions for all employees. OSHA has
since produced the Occupational Safety and Health Standards.
The standards are continually updated. Specific standards for the
construction industry are classified as 29 CFR 1926 共hereinafter
called the standard兲. All employers are required to implement
these standards to ensure that any persons employed by them
1
Associate Professor of Civil Engineering, and Executive Director,
Construction Safety and Health Institute, State Univ. of New York at
Buffalo, Buffalo, NY 14260.
2
Formerly, Graduate Student, Dept. of Civil Engineering, State Univ.
of New York at Buffalo, Buffalo, NY 14260.
Note. Discussion open until October 1, 2002. Separate discussions
must be submitted for individual papers. To extend the closing date by
one month, a written request must be filed with the ASCE Managing
Editor. The manuscript for this paper was submitted for review and pos-
sible publication on October 17, 2001; approved on January 21, 2002.
This paper is part of the Practice Periodical on Structural Design and
Construction, Vol. 7, No. 2, May 1, 2002. ©ASCE, ISSN 1084-0680/
2002/2-85– 89/$8.00⫹$.50 per page.
would be free from any danger while at the workplace. Since
1970, the standards have grown to include nearly all worksite
activities. Though the Occupational Safety and Health Act 共OSH
Act兲 expects the employers to hold to these standards, the em-
ployers do not implement these standards. The reasons for this are
twofold. First, the large size of each of the standards, which total
951 pages, makes it very difficult for employers to study and
comply with each and every standard. In spite of the best efforts
by employers to implement safety programs, it is highly unlikely
that an OSHA compliance officer would depart any given work-
site without citing a minimum of three violations. This statistic
makes the employers very wary of the compliance officer. Sec-
ond, the standards themselves are difficult to interpret due to the
complex and often ambiguous language. Judges who must rule on
cases with these standards on a daily basis often interpret the
same standard very differently. Confusion that exists on construc-
tion sites for both the employers and employees in interpreting
the meaning of the standards is an even greater problem. The
OSH Act and subsequent standards were to be used as a tool that
would aid employers, government officials, and the courts in de-
termining when employees were being exposed to an unsafe con-
dition. However, the current system sets the employers in conflict
with the government officials. The ultimate result is an immense
backlog in the courts of OSHA cases that are waiting to be adju-
dicated. This paper analyzes the OSHA citations that were con-

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 Table 1. Summary of Contested Citations, 1991–1993 Table 2. Outcomes of Contested Citations, 1991–1993
Description Total 1993 1992 1991 29 CFR 1926 violations Number of violations Percent
Number of cases 255 97 61 97 Affirmed 393 56.3
CFR 1926 violations 698 232 206 260 Vacated 178 25.5
Miscellaneous violations 186 75 40 71 Modified 127 18.2
Total violations 884 307 246 331 关Total兴 698 100.0
Amount penalized $591,716 $368,179 $120,737 $102,800

cuss the citation being appealed. The area director has the author-
tested by employers before the Occupational Safety and Health ity to modify the citation through a formal settlement arrange-
Review Commission 共OSHRC兲, for the years 1991–1993. These ment. If the employer decides to contest the citation, the assessed
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cases were reported in the Occupational safety and health re-
porter published by the Bureau of National Affairs, and are com-
prised of 255 citations. Table 1 shows a breakdown of these cases
brought before the OSHRC and the total amount penalized per
year for the years 1991–1993. A significant increase in the dollar
amounts penalized is seen from 1991–1992 to 1993. This was due
to the new minimum sevenfold increase in penalties implemented
by OSHA to make the impact of its citations a clear priority to
contractors. Larger penalties presumably draw more attention
from construction companies, and they may be more willing to
allocate adequate money for safety programs to avoid these lofty
penalties. Table 1 shows that 255 OSHA citations included 884
violations, resulting in 3.4 violations per OSHA citation. Out of
the 884 total violations, 698 pertained to 29 CFR 1926, and the
remaining 186 violations were of a ‘‘miscellaneous category,’’
i.e., not covered in the construction standards.
The OSHA standards should precisely define the responsibili-
ties of the employer in terms that are stated in simple language,
are easily understandable by all parties involved, and are clear
enough to convey the same meaning to all. The current standards
fall short of this in a number of ways. The language used is often
ambiguous, and is interpreted differently by the courts for similar
cases. This obvious lack of consistency must be resolved. An
employer deserves to have standards that can be followed each
time its crew is on a worksite, regardless of its geographical lo-
cation. Currently, the employer and the compliance officer con-
ducting the inspection may each believe that their interpretation is
correct. This variance in factual understanding leads to the next
step, which is the appeal process set forth by the OSH Act.
Appeal Process
The first step an employer may take in appealing a violation is to
set up an informal meeting with the OSHA area director to dis-
penalty, or the abatement period, a written Notice of Change must
be submitted to the OSHA area director within 15 working days
of the citation. The case is then forwarded to the OSHRC. At that
time, an administrative law judge 共ALJ兲 is assigned to the case.
The ALJ may either disallow the contest if it is found to be legally
invalid or call for a hearing that will be scheduled near the em-
ployer’s workplace. After the hearing, and the judge has made a
ruling, any party involved in the case 共employer or OSHA兲 or any
of the three commissioners may appeal the ruling to the OSHRC
for further review. After the OSHRC issues its ruling, any appeals
of the decision must be taken to the U.S. Court of Appeals.
Analysis of Appeals for 1991, 1992, and 1993
For the years 1991, 1992, and 1993, a total of 698 violations of 29
CFR 1926 were contested before the OSHRC for review. Of these
698 violations, 393 共56.3%兲 cases were affirmed, and 305
共43.7%兲 were either vacated or modified 共Table 2兲. This indicates
that the OSHA compliance officers correctly cite the employers a
little more than half of the time. The percentage of affirmed vio-
lations 共56.3%兲 is much lower than it should be. Realistically, the
affirmation rate should be much higher, i.e., toward the upper
limit of 100%. However, under the current system, this is unlikely
due to the fact that in each case, all parties interpret the specific
standard cited by the OSHA compliance officer differently.
There are certain types of construction activities that are more
prone to safety violations than others, due to the special work
being done. Table 3 gives a breakdown of the major categories of
construction activities that are most often cited. From the table, it
is seen that the most grievous 共those with the most fines兲 con-
tested citation was Excavations, followed by Floor and Wall
Openings. Two examples of the ambiguity in the standards of the
most penalized construction operations are described in the fol-
lowing section.

Table 3. Breakdown of Rulings by Standard Type—Contested Citations

Total Number of
Standard Section penalty violations
Occupational Health Environmental Controls 1926.50-59 $28,380 118
Excavations 1926.650-652 $180,427 103
Electrical 1926.400-409 $44,275 90
General Safety and Health Provisions 1926.20-32 $26,344 64
Scaffolding 1926.451-452 $43,860 63
Floor and Wall Openings 1926.5000-502 $88,725 54
Cranes, Derricks, Hoists, Elevators, and Conveyors 1926.550-556 $53,965 4
Personal Protective and Lifesaving Equipment 1926.100-107 $41,845 32
Record keeping and Regulations for Inspections 1903,1904 $240 22
Stairways and Ladders 1926.1050-1060 $7,865 22
All others — $75,790 87

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Pract. Period. Struct. Des. Constr., 2002, 7(2): 85-89

 One of the most widely used phrases in the standards is ‘‘to
provide.’’ This has been interpreted in various ways. The follow-
ing is an excerpt from Standard 1926.106共a兲 regarding lifesaving
equipment 共eighth most penalized construction operation—
Personal Protective Equipment兲: Employees working over or near
water, where the danger of drowning exists, shall be provided
with U.S. Coast Guard–approved life jackets or buoyant work
vests.
In two different cases involving this standard, two separate
interpretations of the standard were made, as follows: 共1兲 ‘‘To
provide’’ means that the employer is required to supply each
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worker with an approved life jacket or vest; and 共2兲 ‘‘to provide’’
means that the employer is responsible for supplying the vest and
for making sure that the employee wears the vest. These two
interpretations are both valid; and in different cases, each has
proven to be the winning argument. A better way of approaching
the problem would be to remove the ambiguity from the standard
by making the language plainly understood. Until such time that
the standard is written in clear and direct language, problems of
incongruent interpretations will continue.
Another standard of interest is Standard 1926.451共a兲共13兲,
which deals with scaffolding and associated operations. The stan-
dard reads as follows: An access ladder or equivalent safe access
shall be provided.
This standard introduces two separate ambiguities. The first is
Fig. 1. Sample OSHRC case summary used in analysis
the ‘‘equivalent safe access.’’ This leaves a large area for inter-
pretation on the part of the contractor as well as the compliance
officer. What may appear to be a dangerous situation to the com-
pliance officer may be considered a perfectly safe operation for a Standard 1926.150共c兲共1兲共vi兲 requires a fire extinguisher when-
contractor who knows the abilities of his/her employees. The sec- ever a flammable or combustible liquid is being used. In this case,
the barrels of flammable substance were unopened and delivered
ond ambiguity is the phrase, ‘‘shall provide.’’ This was litigated in
the night before, and the subcontractor had not yet started his
two separate cases, and the individual outcomes were completely
work activity at the job. The materials were not being used at the
opposite. The first case cited is the U.S. Court of Appeals ruling
time of the inspection. The standard specifically requires a fire
in Usery v. Kennecott Copper Corp. 共1977兲, which stated that
extinguisher when flammable liquids are being used, not stored
‘‘provide,’’ as written in the standard, does not mean that the
共BFW, 16-1065兲.
employer must require the employees to use the equipment. This
The review commission stated that Excavation Standard
led to the citation being vacated, since the equipment was found
1926.625共i兲 is ambiguous. The standard states, ‘‘Bracing and
to be available to the employee who was observed in violation of
shoring of trenches shall be carried along with the excavation.’’
the standard. A separate case affirmed a citation given to a sub-
The commission ruled that the words ‘‘carried along with the
contractor whose employee was observed climbing the bracing of excavation’’ mean that materials and equipment shall be moved
the scaffolding to gain access to it. The compliance officer also along with the excavation for the purpose of bracing and shoring.
saw a ladder that could have been used by the employee; but the There was no bracing in ‘‘use’’ at the time of the inspection, but
citation was given, since the employer had not forced the use of there was a trench box at the worksite and bracing equipment was
the ladder on the employee. This citation was affirmed. Four ad- at ground level next to the trench. OSHRC ruled that the trench
ditional examples of the ambiguous language that exists in the box and bracing equipment were satisfactory to comply with the
standard are provided below. standard 共Panhandle, 14-2146兲. This case was vacated by the
An employer was charged with violating CFR 1926.28共a兲, OSHRC.
which requires employees to wear appropriate protective equip-
ment. The employer stated that he provides equipment, but that
employees choose not to wear it because it is uncomfortable. The Data Acquisition
standard makes employers responsible for requiring the use of
such equipment by their employees 共Brickfield Builders, 15- The OSHRC reviews hundreds of contested cases each year, and
1941兲. This case was affirmed by the OSHRC. the results of each case contested are published in the Occupa-
Standard 1926.105共a兲 requires safety nets when safety belts tional safety and health reporter, published biweekly by the Bu-
are impractical. The U.S. Court of Appeals stated that ‘‘the bur- reau of National Affairs. Often, these decisions are lengthy and
den is on OSHA to prove that the use of safety belts is practical.’’ are difficult to read. For this research project, a checklist for re-
When an employer is laying steel decking when erecting the steel viewing and gathering information from the individual cases was
structure of a building, OSHA must consider and overcome the developed. This placed all of the pertinent information in a con-
employer’s evidence that such devices 共safety belts兲 are ‘‘imprac- cise, one-page summary that could be used for a quick review of
tical,’’ when the industry custom or practice is not to use safety any of the cases. Also, a database was developed to more easily
belts 共Century Steel Erectors, 14-1991兲. This case was vacated by search the cases based on the uniform data mining criteria. A
the OSHRC. sample of the case summaries is given in Fig. 1, and a typical

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Fig. 2. Typical database
page of the computer database is given in Fig. 2.
Development of the case summaries required an in-depth look
at what components of the cases could be of value in the future.
The summaries first included the names of the complainant 共usu-
ally the secretary of labor兲 and the respondent, and included the
type of work that the respondent was in charge of 共i.e., contractor,
subcontractor, industrial shop, and so on兲. From there, a short
summary of the case was written based on the facts placed before
the ALJ prior to the decision. Next, the violation itself was ana-
lyzed. The violation was categorized into five types—willful, re-
peat, serious, other than serious, and de minimis. The name of the
violation 共scaffolding, open-sided floors, etc.兲 and the section of
the standard were referenced. Then, the analysis of the decision
was summarized. This included the outcome of the case 共af-
firmed, vacated, or modified兲, the reason for the inspection, the
88 / PRACTICE PERIODICAL ON STRUCTURAL DESIGN AND CONSTRUCTION / MAY 2002
Pract. Period. Struct. Des. Constr., 2002, 7(2): 85-89
penalty assessed, and a brief summary of the judges’ verdict. This
data mining was performed for various types of cases to provide
a reliable representative sample of the violations.
A database was also developed to assist one in locating similar
violations and for comparing decisions. The database is coded
using the docket number assigned to each case by the OSHRC,
and the case summaries are filed according to these numbers,
which made looking up the cases much easier.
Analysis of Language
In the situations mentioned above, a modification of the language
in the standard would require OSHA to assign a greater burden to
either the employer or the employee. If interpretation 1 of the first
example is used, the employer is only required to make the vests
available to the employees who will be exposed to the potential
drowning hazard. This interpretation would place a greater burden
on the employees, since they will be responsible for their own
actions once the employer makes the vests available to them. The
employees choose for themselves whether or not to wear the vest.
If a compliance officer visited the site and observed that a worker
was not wearing a buoyant vest, the officer would look for a vest
in the equipment area. If there were suitable vests present, no
citation would be issued to the employer. This, however, does not
act in the best interest of the employee, and that was the reason
for the OSH Act in 1970. A better situation would be to use
interpretation 2, which requires that the employers provide the
vest and require use of the vest. This interpretation places a
greater burden on the employer. The best way for an employer to
implement a plan such as this would be to install a stringent
disciplinary plan in conjunction with the safety plan. Documen-
tation would be the key to a strong disciplinary plan. The fore-
persons on-site would be instructed by the employer to note any
employee actions that were in opposition to the safety plan of the
company. Disciplinary actions based on the severity of the act
would be initiated and noted in the employee file. This documen-
tation would be vital evidence in defending against a citation.
With the proper documentation, unpreventable employee miscon-
duct could be proven easily. Any company with such a disciplin-
ary plan would be able to make a strong case to the OSHA area
director, and possibly avoid a court appearance. This disciplinary
system, however, will not be effective until a change in standard
language is introduced. This same scenario also holds for the
second example, in which the employees were not using the
equipment provided to them to perform their tasks.
A decision must be made as to which direction OSHA wants to
go to provide a set of rules that are understandable to all parties
involved, so that the outcomes of the court cases can be more
readily determined prior to actual litigation. Eliminating any am-
biguities in the language would significantly decrease the number
of court appearances.
Conclusions and Recommendations
OSHA has taken steps to make the workplace compliant to the
standards most important in the workplace. One such change was
the increase in monetary penalties, introduced to place a greater
impact on those companies that had violated the standard. With a
greater risk of penalties, an increase in safety spending for each
company became economically justifiable. With greater emphasis
placed on worksite safety, awareness by both the employer and
 Table 4. Breakdown of Violation Types by Year, 1991–1993— Table 5. Average Dollar Amount Pending per Violation—Contested
Contested Citations Citations
Total All three
Violation type number 1993 1992 1991 Percent Violation type 1993 1992 1991 years
Willful 36 17 8 11 6.9 Willful $9,282 $4,763 $4,745 $6,892
Repeat 41 12 19 10 7.8 Serious $1,641 $553 $402 $1,247
Serious 332 105 128 99 63.4 Repeated $3,248 $637 $980 $1,485
Other than serious 108 29 28 51 20.6 Other than serious $79 $18 $78 $63
De minimis 7 3 2 2 1.3 关Average兴 $2,284 $659 $611 $1,152
Total CFR 1926 violations 524 166 185 173 100
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the employee would undoubtedly increase. As Table 4 illustrates,
over 75% of all cases brought before the OSHRC were serious
violations or worse. This means that the standards being violated
and contested are placing employees at risk of being injured. This
situation must be improved before more injuries occur, sending
workers’ compensation premiums even higher 共Table 5兲. In-
creased penalties may be a good start, but they represent only the
beginning of the required changes. To better protect their employ-
ees, employers must be made aware of what is required of them in
regard to safety. With more concise and clear language, the stan-
dards would be easier to follow, and fewer citations would be
written. Workplace safety would become a given.
The primary goal of the 1970 OSH Act was to protect employ-
ees from dangerous situations and provide measures for the em-
ployer to follow to safely construct projects. Employee safety is
the number one priority; OSHA and the individual employers
should work together to make sure every worksite is as safe as
possible. Ideally, a compliance officer would come to the site and
leave without writing a citation. No standards would be over-
looked, but all activities on the site would be done as set forth in
the standard. A reversal of employer motivation is required; cur-
rently, citations are written and fines are assessed for negative
behavior—the absence of safety. The goal of employers is to see
their employees work safely, and then go home to their families at
day’s end.

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