We have received several questions regarding the Sixth Circuit Court of Appeals’ recent decision in All Erection & Crane Rental Corp., 2012 WL 6028627 (6th Cir. Dec. 5, 2012), which upheld a citation alleging that an employer failed to barricade a crane’s swing radius. Despite no employee injury and OSHA’s failure to actually observe an employee in the hazardous area, the Sixth Circuit concluded employee exposure to the hazard existed because “employees had access to the violative condition.” In light of this, readers have been concerned that All Crane may make it easier for OSHA to prove the element of employee exposure.
At first glance, All Crane may appear to throw open the flood gates for employer liability; i.e., any theoretical possibility of employee contact with a hazard will result in a finding of employee exposure. Fortunately for employers, there’s no need to hit the panic button – this is the same employee exposure standard the Review Commission’s been applying for almost 40 years.