OSHA can reach back as far as it wants into the past to assess repeat violations by an employer, according to a recent court ruling.
That was the ruling a federal appeals court which had been asked to rule that there was limit on how far back OSHA could reach to combine violations.
Civil violations of OSHA regulations can be defined willful, repeat, serious or other-than-serious. The higher the classification, the larger the penalty. The current maximum penalty for a serious violation is $12,934, the maximum for repeat violations is about 10 times that amount: $129,336.
In 2015, OSHA told its enforcement staff they should “generally” find a violation is repeat if the citation is issued within three years of a prior violation. Before 2015, that period was five years.
After being cited for repeat violations, Triumph Construction Corp. took OSHA to court claiming it should have stuck to the previous three-year limit.
The Second Circuit Court of Appeals, disagreed and held that because the time limits were set forth only in staff manuals, there was no statutory limit on how far back OSHA could look.
“Employers should continue to effectuate their safety policies and to emphasize a safety-first culture in the workplace. This is the best practice to avoid most OSHA inspections and citation,” urge attorneys David Klass and Travis Vance of the law firm of Fisher Phillips.
They also suggest that employers seriously consider contesting citations if they have a good faith defense to make sure those citations don’t later form the basis of a repeat citation. “The cost-benefit analysis for contesting non-repeat citations has changed,” the attorneys conclude.
“If an employer previously believed that contesting a $12,500 serious citation was not worth the legal cost, the risk of being hit with a repeat violation $125,000 several years down the road may tilt the balance toward contesting those lesser citations,” Klass and Vance observed.
