The Occupational Safety and Health Act defines what is needed for OSHA to prove a serious violation in court. The Act states: “a serious violation exists in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.”
A ruling by the Supreme Court of Oregon, in Oregon Occupational Safety & Health Division v. CBI Services, Inc., is enlightening in its analysis of what satisfies the “could have known” factor … and also points out that what might be the interpretation for those employers under federal programs may not be the same as legal interpretations under state law when it comes to “state plan” enforcement. What is binding precedence in court actions for federal OSHA cases can be considered—and rejected—when it comes to state adjudication, and states are free to impose more stringent requirements on employers doing business in their jurisdiction. Oregon has its own statute enacted to provide enforcement authority to OR-OSHA, and it uses language identical to that in the federal law. The issue in the case was what the Oregon legislature meant by “could not … know.”
CBI Services, a contractor, was working on a water treatment tank that was under construction. While there was scaffolding on the inside of the tank, which would prevent falls to the inside of the tank, there was no similar scaffolding on the outside of the tank. An OR-OSHA inspector saw a worker sitting on the top rim of the tank welding, without using any fall protection. The tank wall was about 32 feet high. A second worker, who was operating a lift several feet from the ground, was observed wearing a safety harness but he had not attached the lanyard to the lift. The employer was cited for two items, both involving fall protection alleged violations. The employer had in place safety rules, precautions and training, conducted worksite safety meetings, and disciplined workers. There was a supervisor on site.
The employer claimed that OR-OSHA failed to establish that the supervisor was not “reasonably diligent in monitoring employees and enforcing safety rules.” OR-OSHA responded that the supervisor was within 65 feet of both employees who were not using fall protection, and had reasonable time to observe them. The ALJ found that the supervisor “could have known” with reasonable diligence, based on his proximity to the worker and the duration of the violation, and rejected the affirmative defense.
There was an intermediate appeal, to the Court of Appeals, which ruled in the employer’s favor by finding that the ALJ had failed to consider that the violation “was entirely unforeseeable” and that the supervisor “had no reason to believe” that there was a potential fall hazard at all.
OR-OSHA appealed, arguing that the Court of Appeals erred because it held that the agency must prove that the employer “knew or should have known” rather than “could have known” of the violation, based on the relevant factors of time and proximity to the violation. The high court rejected federal precedent and found that “could have known” meant “capable of knowing” of the violation. An employer can still offer relevant evidence that, in the particular circumstances, they should not be held responsible—for instance, if it took reasonable steps to discover the violations, or employee misconduct was unpreventable. ■
About The Author: Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, Buyers Guide – November 2015
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