The Occupational Safety and Health Act provides for increased penalties when an employer repeatedly violates a standard. While there is no specific time frame established in the statute for how long OSHA can look back for a repeat violation, OSHA guidance and policy documents generally state that the agency will classify a violation as repeated only if it is being issued within five years of the previous citation. That policy, however, is not legally binding, and a federal court recently held that the look back period for repeat violations is not so limited.
In Triumph Construction Corp. v. Secretary of Labor, Triumph was cited for violating an OSHA excavation standard. The citation was classified as a repeat violation based on two prior violations of the same standard—one in 2009 and one in 2011. Triupmh challenged the citation, in part because OSHA violated its own look back policy, which was three years at the time. Triumph argued that “the Commission failed to provide a reasoned explanation for relying on previous violations more than three years old.”
The Court saw no reason to require a “reasoned explanation.” While an OSHA Field Operations Manual noted that a general, three year policy for repeat violations should be followed,
“there are no statutory limitations on the length of time that a prior citation was issued as a basis for a repeated violation . . . .”
The Court noted that the Manual is “only a guide . . ., not binding . . ., and [does] not create any substantive rights for employers.”
The ruling calls into question an employer’s ability to rely on OSHA guidance and policy interpretations. While OSHA states that it will generally use a five year look back period, there is no guidance to indicate the circumstances under which they will depart from that general standard. And the Court’s ruling in Triumph seems to indicate that OSHA does not need to provide such guidance. Because the statute does not provide a limit on the look back period, employers should be prepared to face repeat violations regardless of how much time has passed since the original citation.
The case is Triumph Construction Corp. v. Secretary of Labor, 2d Cir., No. 16-4128.