Don’t Wake the Sleeping Dog of Repeat MIOSHA Citations
Author: Andy Hilger
Receiving any type of citation from MIOSHA should be treated seriously regardless of the classification type MIOSHA alleges. Citations are classified based on the likelihood and magnitude of the harm that could occur as a result of the alleged violation. Among others, those classifications include “Serious,” and “Other-than-Serious” (OTS) citations.
Guide to MIOSHA Citation Classifications
MIOSHA citations are classified according to the serious nature of an injury that might result if an incident were to occur. In addition, a citation classification can be enhanced when the violation has aggravated factors.
Serious
A hazard exists that has a likelihood of causing serious physical harm or death. Serious violations must contain a monetary penalty, with the maximum penalty being $7,000.
Other-than-Serious
A hazard exists and could cause an injury, but most likely would not result in death or serious physical harm.
Willful (Enhanced Designation)
A violation was committed with an intentional disregard or plain indifference to the requirements of MIOSHA regulations or employee safety and health. A willful citation must have a minimum penalty of $5,000, with the maximum penalty being $70,000.
Repeat (Enhanced Designation)
A violation is of the same rule or similar condition as a prior violation within three years (Construction) or five years (General Industry). A repeat citation carries a maximum penalty of $70,000.
Failure to Abate (Enhanced Designation)
The prior citation which is final was never corrected and a later inspection shows the condition or violation has continued to exist. A failure to abate can carry a maximum penalty of $7,000 for each day the failure or violation has continued beyond the original period for correction.
When an OTS citation is issued, it can be tempting to view it as a cost of doing business and simply pay the relatively low penalty amount and move on. However, employers should always consider the merits of the citation and the likelihood your company could be cited again for the same conduct –some violations are more commonly alleged than others. Taking these factors into account should guide your decision of whether to appeal.
In addition to Serious and OTS violations, MIOSHA issues citations for “Repeat” violations. According to MIOSHA’s current Field Operations Manual, a Repeat violation will be issued if an “employer has been cited previously for a substantially similar condition, [and] the previous violation was abated and has reoccurred … within three (3) years of the case closing date of the prior inspection…”
Receiving a Repeat citation, even for OTS violations, carries consequences which are often overlooked. The penalty for an isolated OTS violation is capped at $7,000 but is often less. For Repeat violations, MIOSHA will weigh a number of factors in determining the penalty amount but has the statutory authority to assess a penalty of up to $70,000.
Appealing MIOSHA Citations
The decision to appeal a citation extends beyond paying the fine. Guarding your company’s reputation for safety in the industry can be important for other reasons including the ability to procure public and private work, in addition to keeping insurance premiums low.
If you have been cited by MIOSHA, you must act quickly in determining whether to appeal. If an appeal is not timely filed, an employer’s right to do so is waived. Hilger Hammond can assist you in weighing your options and guide you through the process to make the right business decision based on the circumstances.
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