A recent court decision extending the time limitation for OSHA to assess repeat violations has upped the ante for employers who until now chose not to contest more routine violations because of the cost of defending them.
OSHA defines violations of its regulations as willful, repeat, serious, or other-than-serious. The higher the classification, the larger the penalty. While the current maximum penalty for what OSHA terms as a serious violation is $12,934, the maximum for repeat violations can be assessed as much as close to 10 times that amount—$129,336.
Prior to 2015 it was the agency’s practice to look back no further than three years for citations that could add up to repeat violations. In 2015, OSHA increased that period to five years in a revision of its Field Operations Manual (FOM) for its enforcement staff.
However, a decision handed down by the U.S. States Second Circuit Court of Appeals in February serves as a reminder that the period of time recommended by the FOM does not impose a legal limitation that restricts OSHA’s ability to establish repeat violations.
The court was asked whether the five-year period applied to a 2015 repeat citation issued to Triumph Construction Corp. because OSHA, in order to establish the repeat violation, had chosen to include a prior citation from more than three years earlier.
Triumph argued that OSHA’s decision to examine and include citations beyond the three-year period set out in the FOM was arbitrary. The court determined that the earlier guidances in the staff manuals that appeared to establish a rigid three- or five-year look-back period in reality were not binding on the agency. The court pointed out that neither the Occupational Safety and Health Act nor the regulations OSHA had issued under the Act spelled out any time period that limited the issuance of repeat citations.
The court also noted that the previous Occupational Safety and Health Review Commission precedent had established that the time limitation set forth in the enforcement manual “is only a guide” and “is not binding on OSHA or the commission,” which also freed OSHA from only being able to review a certain number of years to classify violations as repeat.
Avoiding Repeat Violations
How should employers respond to this decision? Attorneys David Klass and Travis Vance of the law firm of Fisher Phillips have some ideas. First of all, they point out that employers don’t need to fear confronting this issue at all if they can adhere to safety practices that don’t draw OSHA citations to begin with.
“First and foremost, employers should continue to effectuate their safety policies and to emphasize a safety-first culture in the workplace,” Klass and Vance stress. “This is the best practice to avoid most OSHA inspections and citation.”
If OSHA inspectors find what they believe is a violation resulting in a citation, employers should reexamine their policy if in the past they chose to simply pay the fee to avoid incurring the costs associated with fighting it. “The cost-benefit analysis for contesting non-repeat citations has changed,” the attorneys emphasize. “Employers should seriously consider whether to contest citations to which they have a good faith defense so that those citations do not later form the basis of a repeat citation.”
If in the past an employer thought that contesting a $12,500 serious citation was not worth the legal cost, the risk of being hit with a repeat violation of $125,000 several years down the road may tilt the balance toward contesting those lesser citations, Klass and Vance observe. “Pay special attention to any citation that involves a routine activity, task, or equipment where a repeat is more likely to arise in the future.”
The attorneys also reinforce the importance of maintaining comprehensive records and data regarding prior OSHA inspections and citations to ensure that citations regarding the same hazards don’t reoccur. “This will hopefully prevent the issuance of a repeat citation, no matter what the repeat time period OSHA may attempt to enforce,” they say.
Although the Triumph decision didn’t really create new law, it should remind employers that OSHA has broad enforcement discretion with respect to its repeat violation period. “Remain proactive in your efforts to develop a robust safety program in order to minimize OSHA citations and avoid the higher penalties associated with repeat citations,” Klass and Vance conclude.