OSHA citations are costly. “Repeat” OSHA citations are even more expensive, and may set the stage for future willful violations. Repeat citations are assessed when enforcement officials look back at the employer’s history and find citations for substantially similar conditions or hazards. Historically, repeat citations have been assessed based upon a generally agreed-upon “look back” period provided in OSHA’s Field Operations Manual (“Manual”), the instruction manual used by OSHA enforcement officials that details policies and procedures for OSHA enforcement that helps ensure uniformity amongst enforcement officials. Prior to 2015, the Manual provided for a three-year look back period. The look back period was extended to five years in 2015.
But this February a New York court, in the case of Triumph Construction v. Secretary of Labor, held that this “look back” period is not binding. In other words, enforcement officials can “look back” further in time than the “look back” period that is suggested by the Manual when determining whether to issue a repeat citation. This ruling provides enforcement officials with potentially unlimited look back ability.
In this case, Triumph was the general contractor on a water main replacement project in lower Manhattan. One of Triumph’s employees was injured in a cave-in at one of the project excavation sites in August, 2014. Later, in 2015, OSHA issued a citation to Triumph for a repeat violation of the OSHA regulation that requires a cave-in protection system for all excavations five feet in depth or more. OSHA classified the citation as a repeat violation based on two previous citations Triumph received for violating the same regulation in 2009 and again in 2011.
Triumph contested the repeat violation, relying upon OSHA’s stated policy in 2014 of using a three-year look back period. In support of its argument Triumph pointed the court to the Manual. The court concluded that OSHA had not abused its discretion by relying on previous violations more than three years old because there is nothing in OSHA law that strictly limits the look back period to three years. The Court noted that the Manual states that the three-year period shall “generally” be followed and further stated that the Manual is “only a guide for OSHA personnel to promote efficiency, is not binding on OSHA . . . and does not create any substantive rights for employers.”
In Virginia, the Virginia Occupational Safety and Health Field Operations Manual ("Virginia Manual") sets forth a three-year look back period. Under the Virginia Manual, repeat citations may be issued if the citation is issued within three years of the final order or the final abatement date of the previous citation. While it is unclear whether VOSH or a Virginia state court would strictly apply the three-year look back period, a Virginia state court judge might take a cue from the New York federal court and allow repeat violations based on a longer look back period.
The lesson to be learned for contractors and employers with a history of violations is that generally-suggested look-back periods found in field operations manuals and other non-binding guidelines may not necessarily protect you from being subjected to costly citations for repeat violations. Your construction lawyer can assist with determining whether to request an informal conference or to contest a citation and can also assist with assessing your chances of having citations dismissed and decreasing the risk of costlier repeat violations.
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