Need another reason to review your safety programs for Occupational Safety and Health Act (OSHA) compliance? A recent Fifth Circuit ruling protects an employer from strict liability for “willful” violations, even though the employer’s own supervisor violates company safety rules.
OSHA “establishes a comprehensive regulatory scheme designed ‘to assure so far as possible . . . safe and healthful working conditions’ for ‘every working man and woman in the Nation.'” Martin v. OSHRC, 499 U.S. 144, 147 (1991) (quoting 29 U.S.C. § 651(b)). Toward that end, OSHA authorizes the Secretary for the Department of Labor to promulgate health and safety standards and to enforce compliance through the issuance of citations, including safety regulations to govern the construction industry. Last week, the Fifth Circuit issued an opinion in W.G. Yates & Sons Construction Co. v. Occupational Safety & Health Review Commission (5th Cir. 8/4/06) [http://www.ca5.uscourts.gov/opinions/pub/05/05-60216-CV0.wpd.pdf], reversing the Occupational Safety and Health Review Commission’s citations for Yates’ alleged violations of two fall protection standards while performing work at a mall construction site. It was undisputed that the company’s own supervisor violated OSHA and that he knew his conduct violated the law as well as company policy. The issue was whether or not the conduct was sufficient to show Yates’ “willful” violation.
The Fifth Circuit said “no.” In ruling on Yates’ appeal of the $9,000 assessment, the Fifth Circuit held that the Commission failed to carry the burden of proving that the supervisor’s OSHA violations should be attributed to the employer. The court then stated that such conduct is not attributable where the “employer’s safety policy, training, and discipline are sufficient to make the supervisor’s conduct in violation of the policy unforeseeable.” The Fifth Circuit reasoned that the Commission failed to show that the supervisor’s conduct was foreseeable in light of Yates’ enforced safety program.
So, review your safety policies regularly and document in-services, trainings and discipline.
