OSHA To Appeal Review Commission Decision in Secretary of Labor v. Ho

Assistant Secretary of Labor John Henshaw vowed Dec. 5 that OSHA will fight the independent Occupational Safety and Health Review Commission's (OSHRC) recent decision in the case Secretary of Labor v. Ho.

OSHRC ruled that the Secretary of Labor unfairly applied per-employee citations against Houston contractor Eric Ho, who used untrained immigrant workers wearing only dust masks to remove asbestos under cover of darkness.

The OSHRC is an independent federal agency created to decide contests of citations or penalties resulting from OSHA inspections. In a vote of 2-1, commission members moved to reduce the fines proposed by OSHA from $1.14 million to $658,000. According to the Review Commission, the Labor Department cannot use the respiratory protection and training standards to increase fines by citing for every employee who is untrained, or has improper respiratory protection.

"OSHA is committed to doing everything in its power to promote safe and healthy workplaces," said Henshaw. "The egregious policy that we are defending in this case allows strong enforcement measures against particularly irresponsible employers, like Ho, who blatantly ignore their obligation to protect their workers, and knowingly subject the workers to serious hazards. In our appeal we will make clear that the commission decision would prevent us from providing the protection Congress intended to workers employed by this minority of irresponsible employers."

Many fear that if allowed to stand, the Ho decision would limit OSHA's ability to crack down on employers that willfully fail to protect workers from known safety and health risks.

James "Skipper" Kendrick, president of the American Society of Safety Engineers, calls the egregious conduct policy "a necessary tool for OSHA to make the worst employers accountable for their willful failure to protect workers from known safety and health risks."

In a letter sent to Henshaw, Kendrick stated, "If allowed to stand, this decision would be an unacceptable step backwards in the federal government's ability to enforce this nation's occupational safety and health standards against those who deserve enforcement attention the most."

In egregious civil penalty cases, OSHA has been able to fine an employer for each instance of a workplace violation even when they apply to the same standard. Under OSHA policy, OSHA inspectors are instructed to cite employers for multiple violations of the same standard where the employer has demonstrated one or more of the following characteristics: persistently high rates of illness/injury or fatalities; extensive history of prior violations; intentional disregard of health and safety responsibilities; and bad faith (indifference to standards or requirements).

"Allowing this decision to stand will make it extremely difficult for OSHA to hold truly egregious employers responsible for their willful failures to protect workers," Kendrick said. "When a ruling like Ho threatens to limit OSHA's ability to address those employers, ASSE fully supports OSHA in taking whatever steps are possible to see that such a ruling will not stand."

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