Managing OSHA

Critical but practical advice for when OSHA comes knocking.

Managing OSHA

Significant Legal Decisions


Second Federal Appeals Court Rejects OSHA’s Efforts to Evade OSH Act Statute of Limitations by Alleging Continuing Violation

On December 29, 2016, a three-judge panel from the US Court of Appeals for the Fifth Circuit unanimously vacated two OSHA citation items issued to a Delek Refining Ltd. (“Delek”) facility for alleged safety violations that occurred years prior to its ownership of the refinery. The decision is a significant victory for employers because it marks the second time that a federal appeals court has rejected OSHA’s attempt to allege the existence of a “continuing violation” that suspends the six-month statute of limitations contained in the OSH Act.


OSHA Can and Will Use Employers’ Internal Safety Audit Reports as a Roadmap to Cite Them: What Employers Can Do to Protect Themselves

Since a July 28, 2000 Final Policy was published in the federal register, OSHA has maintained it will not use an employer’s own, voluntary safety and health audit as a roadmap to identify and issue citations against it. According to the Final Policy, while OSHA may in some circumstances request internal audit reports, “the Agency will not use [them] as a means of identifying hazards upon which to focus during an inspection.” Employers are thereby encouraged to proactively identify and then correct hazardous conditions in the worksite without fear of self-incrimination.

In a recent initial Review Commission decision (Sec. of Labor v. BP Products North America, Inc. et al.), however, the evidence showed that OSHA intentionally violated its Final Policy by making “extensive use” of the employer’s own audit report to identify and issue the contested citations. Despite being “troubled” by OSHA’s “blatant contravention” of its Final Policy, the Administrative Law Judge (ALJ) permitted the evidence, in effect, condoning the practice for future use.


Protecting Your Company from OSHA Liability for Supervisor Misconduct

Recently, the Eleventh Circuit Court of Appeals joined the Third, Fourth, Fifth, and Tenth Circuits in finding that an employer is not necessarily liable for OSHA violations committed by its supervisors.  See Comtran Group, Inc. v. U.S. Dept. of Labor, No. 12-10275 (11th Cir. July 23, 2013).  In order to establish that an OSHA regulation has been violated, the Secretary must show four elements: (1) that the regulation applied; (2) that it was violated; (3) that an employee was exposed to the hazard that was created; and at the heart of this case (4) that the employer knowingly disregarded the OSH Act’s requirements. 

The general rule has been that the knowledge of a supervisor is imputed to the employer – so if the supervisor knew or should have known of the violation, his knowledge is imputed to the employer and the Secretary can use this fact to show that the employer had knowledge of the violation.  But a growing number of Circuit Courts have held that there is an exception to the general rule: when a supervisor knows that he himself has violated an OSHA regulation, his knowledge of his own violation is not imputed to his employer unless it was foreseeable.


ALJ Rejects OSHA’s Attempt to Create Requirements Not Found in the Text of the PSM Standard

In a recent initial decision by an Administrative Law Judge from the Occupational Safety and Health Review Commission, the ALJ rejected OSHA’s attempt to specify how process safety information must be maintained by an employer. 

Among the issues before the judge in Sec. of Labor v. BP Products North America, Inc. et al. was whether 29 C.F.R. § 1910.119(d)(3)(i) requires process safety information for equipment in a PSM covered process to be presented in a specific format, specifically whether 119(d)(3)(i) requires an ASME Form U-1 for a covered pressure vessel.  In its opinion vacating the citation, the ALJ criticized OSHA for “impermissibly creat[ing] a significant requirement not found in the cited standard.”

The decision reinforces the position that in a performance based standard like PSM, an employer has significant latitude regarding how process safety information should be maintained.

For more information, please contact Mark Dreux, Head of the Arent Fox OSHA Group, at 202-857-6405.


OSHA Intends to Use Rulemaking to Undo D.C. Circuit’s Decision to Limit Recordkeeping Statute of Limitations

On July 3, 2013, the Obama administration released its spring 2013 regulatory agenda, which includes new deadlines for significant OSHA rulemaking.  One of those new items includes OSHA’s proposed recordkeeping rule change, titled “Clarification of Employer’s Obligation to Make and Maintain Accurate Records of Work-Related Injuries and Illnesses.”  The proposed rule is to be unveiled by November of this year.

Under the new rule OSHA will attempt to clarify that: (1) the duty to maintain accurate records of work-related injuries and illnesses is an ongoing obligation; (2) the duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred; and (3) this duty will not expire even if the employer failed to make the necessary records in the first place.  This is consistent with OSHA’s original interpretation of the OSH Act’s statute of limitations for injury and illness recordkeeping before the District of Columbia Circuit Court of Appeals rejected it in 2012.


Sixth Circuit’s Standard for Employee Exposure Nothing New

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.


Update on Lawsuit Challenging Combustible Dust Provisions of New HAZCOM Standard

On May 24, 2012, the American Chemistry Council (ACC), the National Grain and Feed Association (NGFA), the National Oilseed Processors Association (NOPA), and the Renewable Fuels Association (RFA) filed a petition in the US Court of Appeals for the DC Circuit challenging the provisions of the new hazard communication standard that relate to combustible dust. On November 2, 2012, the court stayed the case pending further settlement discussions between OSHA and the other parties involved. At the end of last month, movement in the lawsuit picked up again.


Supreme Court Limits the Discovery Rule: Ruling Could Have Implications for OSH Act's Statute of Limitations

On February 27, 2013, the United States Supreme Court issued its decision in Gabelli v. SEC. The Gabelli case centered on the interpretation of a federal statute of limitations that provides that “an action… for the enforcement of any civil fine, penalty, or forfeiture . . . shall not be entertained unless commenced within five years from the date when the claim first accrued.” The SEC asked the Court to read the so-called “discovery rule” into this statute of limitations so that the five year clock would not begin to tick until the alleged violation was discovered.

The Court rejected the SEC’s argument, instead holding that once a claim accrues, the five-year clock begins to run. The “standard rule,” the Court held, “is that a claim accrues when the plaintiff has a complete and present cause of action.” Although Gabelli involved the SEC rather than OSHA, and a different statute of limitations, the Court’s reasoning should apply equally to the six-month statute of limitations established by the OSH Act, thus preventing OSHA from relying on the discovery rule to extend the OSH Act’s limitations period.


Key Questions for Employers to Ask When Defending a Machine Guarding Citation

Last year, the machine guarding standard – 29 C.F.R. § 1910.212 – was among OSHA’s top 10 most frequently cited standards, moving up one spot from where it was the previous year. In fact, it earned a place in OSHA’s top 4 highest penalties assessed for 2012. In light of its increasing regularity and formidable penalties, employers should be prepared to consider 3 primary questions when facing the prospect of a machine guarding citation:

  1. Have the moving part hazards been designed out of the machine at issue?
  2. Is there employee exposure to any hazard associated with the moving parts?
  3. Have any administrative controls been implemented to limit exposure?

These questions will provide a meaningful starting point for employers to evaluate their defenses if OSHA ever shows up at the door.


The Volks Decision: District of Columbia Circuit Court of Appeals Clarifies the OSH Act’s Statute of Limitations

The District of Columbia Circuit Court of Appeals clarified the meaning of the OSH Act’s Statute of Limitations (SOL) in AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (DC Cir. 2012) (the "Volks Decision"). In the Volks Decision, an employer was cited and fined for failing to properly record certain workplace injuries and for failing to properly maintain its injury log between January 2002 and April 2006. OSHA issued the citations in November 2006, which was, as the employer argued, at least six months after the recorded injury occurred. The OSH Act’s SOL provides that citations must be issued within six months following the occurrence of any violation. 29 U.S.C. § 658(c). Employing a plain reading of the statute, the Court of Appeals held that because the citations were issued outside of the six-month SOL, they were untimely and must be vacated.


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Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.