The employer will counter with six predictable defenses.

The CSHO must prove the elements of a violation. 

- A standard is applicable

- The Employee exposure is within 6 months or on going

- The Hazard can cause death of serious physical harm 

and - the employer had knowledge of the condition

The  employer will counter with six predictable defenses.

1. The employee was exposed and the employer had no reason to believe that the exposure would occur. A photo of the hazard is one step. The other is the interview or proof that the employer know that the employee would be near the hazard. This can be done via an interview, signed statement or deposition. Many fatalities have this defense come up. I call it the head in the sand defense. 

2. The employee violated the safety rule and exposed himself to a hazard. This requires the CSHO to get proof of the employer's written safety rule, proof the that training in the rule took place, the past audits, and the employer's discipline program. Very common with the employee not wearing PPE.

3. The violation just occurred unknownst to the employer. This requires the CSHO to get proof of the conditions' duration via interviews. Very common on fall protection citations. Someone guard took off the cover or guardrails. 

4. The employer was in the midst of getting the hazard fixed. Again interviews are necessary to establish what the employer knew of the hazards and a timeline of the action to fix the hazard. Common in trenching and and housekeeping. 

5. The abatement will create a hazard equal or greater than the cited condition. This is requires the CSHO to know how long it would take to to fix the cited condition and whether there is a longer employee exposure to the condition. Used on roofs by Dish TV installers.

6. The condition is impossible to fix. I see this come up where there is no OSHA anchorage for the employee to tie off onto and certain machine guarding issues.