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Beware: OSHA’s “Look-Back” Period for Repeat Violations is Unlimited

Until 2015, it was the practice of OSHA to look back only three (3) years to prior citations to establish “repeat” violations under the Occupational Safety and Health Act.  In 2015, OSHA modified the look-back period in its Field Operations Manual (FOM) from three (3) years to five (5) years.  Violations of OSHA regulations are classified in several ways, including willful, repeat, serious, or other than serious.  The higher the classification, the larger the penalty.  For example, the penalty cap for a serious citation is $12,934, but the penalty cap for a repeat violation is $129,336.

While the Occupational Safety and Health Act, as well as the OSHA regulations, do not specify the time-period that OSHA considers for repeat violations, the Field Operations Manual (FOM) provides guidance for enforcing the regulations.  As of 2015, it provides that OSHA shall “generally” consider a violation to be a “repeat” if the citation is issued within “five years of the final order of the previous citation or within five years of the final abatement date.”

On February 14, 2018, however, the 2nd Circuit Court of Appeals in Triumph Construction Corp. v. Secretary of Labor held that the time period stated in the FOM is not binding on OSHA.  The court stated that it did not matter whether the FOM prescribed a three year or five-year look-back period.  The court noted that neither the OSH Act nor the regulations promulgated under the authority of the OSH Act set forth any time period limiting the issuance of repeat citations.  The court reviewed and relied upon prior Occupational Safety and Health Review Commission orders which held that the time limitation set forth in the FOM is “only a guide and is not binding on OSHA or the Commission.”  In other words, OSHA and the Review Commission are not restricted to looking back only a certain period of time when considering “repeat” citations.

What does this mean for employers?  First and foremost, employers should focus on developing and maintaining a safety culture in the workplace.  Corporate officers and executives should actively be involved in safety, and ensure all employees understand and follow safety policies and programs.  This is the best practice to avoid OSHA inspections and citations in the first place.  Studies show that investment in developing and maintaining a “safety first” culture provides a significant return on investment.

Second, as we all know, humans are prone to errors, and accidental injuries may occur despite best practices by the employer.  This often spawns an OSHA investigation and resulting citations.  Given the recent decision in the Triumph Construction Corp. case outlined above, the cost-benefit analysis for contesting citations has changed.  Employers should now seriously consider whether to contest citations to which there is a good faith defense to avoid a “repeat” citation several years later.  Where employers previously may have decided not to fight a “serious” citation for $12,500 because it was not worth the legal cost, now there is a risk of a $129,000 “repeat” violation years later.  Therefore, employers should be concerned when faced with citations involving routine activities or tasks such as lock out/tag out or forklift maintenance and training violations.  These types of violations present significant risk for future “repeat” citations.

Finally, employers should maintain records and data on prior OSHA inspections.  The prior citations should be analyzed to ensure not only that those hazards have been abated but that employees are not exposed to the same or similar hazards.  A program of robust reporting of “near misses” is helpful for safety professionals to analyze potential hazards and avoid exposing employees to the same or similar risk to hopefully prevent repeat citations.

The Triumph Construction Corp case reminds us that OSHA has very broad discretion in enforcing regulations with respect to the “repeat” violation period.  But companies that proactively develop and enforce “best safety” practices within a robust safety program, and analyze any and all OSHA citations with the potential “repeat” violation in mind, have the best chance to avoid the higher penalties associated with repeat citations.

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