What Is an OSHA De Minimis Violation?
An OSHA de minimus violation is a special class of violation that has “no direct or immediate relationship to safety or health,” per standard 1903.14. The term “de minimis" is a Latin phrase translatable as “about minimal things,” and is commonly used in legal parlance when an infraction is trivial and not worthy of legal consideration. These violations do not result in citations or penalties.
In other words, if you’re going to get any OSHA violation (and employers should always try to stay compliant), a de minimis violation is the best possible outcome. That doesn’t mean that they’re inconsequential. Here’s an overview of OSHA’s treatment of minor violations.
Examples of Possible De Minimis OSHA Violations
Most examples of de minimis violations are fairly straightforward — a window clearance might be a half-inch lower than what OSHA requires, for instance, or the lungs between a ladder might be 13 inches apart instead of the OSHA-approved 12 inches. If the violation cannot affect workers' safety or health in any way, the inspector probably won’t declare a more serious violation.
However, when working with material handling equipment, de minimis violations can become much more complicated (and much more difficult to identify). By nature, heavier equipment carries more risk, and to receive a de minimis warning rather than a more serious violation notice, employers need to show that they’re acting in good faith to keep workers safe.
For example, say that an employer wants to modify a lift truck in accordance with 29 CFR 1910.178(a)(4), which states that “modifications and additions which affect the capacity and safe operation shall not be performed by the customer or user without manufacturers prior written approval.”
The lift truck’s manual does not clearly state whether or not an attachment can be used, and the employer is unable to get a response from the manufacturer. The employer hires an engineer to evaluate the attachment and determine whether it can be safely used with the lift truck. The engineer performs a safety analysis and finds the attachment to be safe. However, the lift truck manufacturer finally responds to the employer and specifically advises against the use of any attachment.
An OSHA inspector might reasonably conclude that this situation constitutes a de minimis violation — the employer has taken reasonable steps to confirm that the attachment is safe, despite a technical violation of 29 CFR 1910.178(a)(4).
How OSHA Inspectors Determine De Minimis Violations
OSHA enforcement directives detail several conditions that can result in a de minimis violation:
- The employer follows the standard’s intent, but “deviates from its particular requirements in a manner that has no direct or immediate impact on employee safety or health.”
- The employer complies with a proposed standard, amendment, or consensus standard rather than the standard in effect at the time of the inspection. To qualify for this condition, the measures taken by the employer must provide equal or greater protection for employees.
- The employer complies with an OSHA National or Regional Office’s written interpretation rather than the actual standard.
- The employer implements workplace protections that are “state-of-the-art and technically more enhanced than the requirements of the applicable standard.”
While these conditions provide some basic guidance, OSHA leaves the determination of de minimis violations to the inspectors.
Consequences of an OSHA De Minimis Violation
Safety inspectors will not issue a citation for a de minimis violation, but they will inform the employer of the issue. Because the violation is, by definition, not a threat to the health or safety of workers, the employer probably won’t need to take further action — but the violation is still logged, and the next inspector may determine that the violation warrants more serious intervention.
Practically, employers should try to address de minimis violations where reasonable. For instance, if an inspector finds a minor recordkeeping issue and declares the issue to be de minimis, it’s in the employer’s best interest to bring recordkeeping into accordance with the latest OSHA standards before the next inspection.
In some cases (for instance, the forklift attachment example mentioned earlier), complying with the technical language of the standard would be expensive, impractical, and no more safe than continuing with current practices. OSHA generally errs on the side of employers acting in good faith, so listen to the inspector’s advice regarding minor violations. Keep documentation, purchase ergonomic equipment wherever possible, and address potential compliance issues as soon as they arise.
As always, our articles on OSHA compliance are not intended to act as legal guidance. Contact a qualified safety inspector in your state for more information. For information on ergonomic equipment, contact Solus Group at (314) 696-0200.