Secretary of Labor Aims to Limit Duplicative OSHA Citations Defense

One OSHA Violation Could Lead to Several Citations

 

If your workplace is fined for a single OSHA violation, that doesn’t always mean you’ll get just one citation. Sometimes multiple OSHA standards can apply to a single violation.

This can double or even triple penalties, costing employers up to $12,934 for each Serious or Other-Than-Serious citation and up to $129,336 for each Repeat or Willful citation.

 

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Historically, the Occupational Safety and Health Review Commission has been in favor of allowing employers to use a defense against OSHA citations. However, the Secretary of Labor is currently seeking to limit that defense.

Though the Commission tends to disfavor duplicate citations, their long-standing precedent states, “violations may be found to be duplicative where the standards cited require the same abatement measures, or where abatement of one citation item will necessarily result in the abatement of the other item as well.”

 

What’s Duplicative, and What’s Not?

 

Currently, there is a pending case regarding two willful citation items for the same incident.

The employer, provided masonry work on a mixed-use construction project where employees worked within close proximity to live power lines. The first citation came from standard 29 C.F.R. § 1926.416(a)(1), which prohibits employees from working in close proximity to any part of an electric power circuit where contact could be possible unless the employee is protected against electric shock.

 

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The second citation alleges that the employer violated OSHA’s construction standard for power line safety for crane and derrick operations, as the rigging equipment on the crane an employer was using came within eight feet of power lines.

Standard 29 C.F.R. § 1926.1408(a)(2) requires that employers, “determine if any part of the equipment, load line or load (including rigging and lifting accessories), if operated up to the equipment’s maximum working radius in the work zone, could get closer than 20 feet to a power line. If so, the employer must meet [one of three enumerated options].”

The administrative law judge found that the two citations were not duplicates of the either and upheld both of the willful items. However, the Occupational Safety and Health Review Commission overturned the ruling in an appeal.

 

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The majority’s main argument was on whether the abatement of one item would abate the other. They found that the abatement action of “removing and relocating the energized power line” would solve both issues.

However, the Secretary of Labor appealed the decision to the Second Circuit.

 

How Things Could Change For Duplicative OSHA Citations?

 

The Secretary of Labor believes a “multi-factor and fact-based” test should be used to determine if a citation is duplicative. The test contains five elements to consider:

 

  1. The conditions giving rise to the violations are the same or very similar
  2. The two standards violated are closely related sister standards
  3. The two violations occurred on the same date and at the same location, and the facts supporting both violations are the same
  4. The same employees were exposed to the hazards involved in the two violations
  5. Compliance with one standard would ordinarily presuppose or substitute for compliance with the other, and the same abatement would abate both violations.

 

If this test became the standard, it would make it easier for OSHA to issue multiple citations for single events.

 

Preparation is the Strongest Defense

 

Employers should be aware that a potentially more stringent attitude towards multiple citations could be on the horizon. One event could quickly escalate into exorbitant financial penalties.

The best defense against these measures remains having a strong health and safety program in place. Worksite Medical offers on-site medical surveillance for employee testing and evaluations.

Employers can stay one step ahead of potential violations and ensure the health of their employees.

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