OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.

September 11, 2023

Mr. Travis W. Vance
Fischer & Phillips LLP
227 West Trade Street, Suite 2020
Charlotte, North Carolina 28202

Dear Mr. Vance:

Thank you for the correspondence to the Occupational Safety and Health Administration (OSHA) regarding OSHA's policy on subsequent citation issuance for those citations currently under contest. You requested guidance on OSHA's policy for citing a condition when a previous citation for the same condition is under contest. Additionally, you referenced 29 CFR 1903.13 which provides the agency authority to seek appropriate relief for practices and conditions considered by the agency to be an imminent danger. You indicated that this authority would minimize the agency's need to issue additional citations for conditions pending adjudication. In response to your inquiry, please see the below.

OSHA's FOM Chapter 7 paragraph I. B - Contest Process, states “in those cases where a notice of contest is properly filed, OSHA will normally cease all investigatory activities once an employer has filed a notice of contest. Any action relating to a contested case must first have the concurrence of the RSOL.” When an employer files a notice of contest for a citation(s) accepted by the Occupational Safety and Health Review Commission, the obligation for abatement of the specific condition(s) cited and payment of penalties for those contested items is suspended until the matter is adjudicated by the court or settled by the parties, and the citation(s) becomes a final order. OSHA generally does not issue an additional citation for the exact same condition, equipment, and location as that previously cited and under contest. However, OSHA reserves the right to take enforcement actions necessary and appropriate to ensure employers meet their obligations under the OSH Act to protect workers. This may include use of its authority to seek relief for conditions considered an imminent danger to workers, and issuance of citation(s) where appropriate.

For more information about the OSHA inspection process, please refer to OSHA's Field Operations Manual at: https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-00-164_2.pdf. Additionally, the employer's rights and responsibilities following an OSHA inspection can be found at: https://www.osha.gov/sites/default/files/publications/osha3000.pdf.

Thank you for your interest in occupational safety and health. If you have any further questions regarding OSHA's enforcement policies and programs, please feel free to contact the Directorate of Enforcement Programs at (202) 693-2100.

Sincerely,

Kimberly Stille, Director
Directorate of Enforcement Programs