Circuit Court Affirms OSHA’s Power to Cite Employee-by-Employee Violations

 OSHA has the authority to impose on employers penalties for each individual instance of a violation of safety and health rules, according to an April 16 ruling by the U.S. Court of Appeals for the District of Columbia (National Association of Home Builders v. OSHA, D.C. Cir., No. 09-1053, 4/16/10). The unanimous decision by the three-judge panel upholds a long-standing OSHA enforcement tool, generally used only when the employer’s behavior is deemed by the agency to be “egregious.”

The National Association of Home Builders, along with the U.S. Chamber of Commerce and the National Association of Manufacturers, had challenged OSHA’s egregious penalty policy after OSHA amended its standards in a final rule published in the Federal Register Dec. 12, 2008 (73 Fed. Reg. 75.568; see attached document, below) and that took effect in January 2009. In this rule, OSHA stated it was merely clarifying a long-standing policy: that the agency’s personal protective equipment (PPE) and training requirements impose a compliance duty to each and every employee covered by the standards. Noncompliance with this duty, therefore, could expose employers to liability on a per-employee basis.          

In the 2008 rulemaking, OSHA explained its action was taken in response to recent decisions by the Occupational Safety and Health Review Commission indicating that differences in wording among the various PPE and training provisions in OSHA standards affected the agency’s ability to treat an employer’s failure to provide PPE or training to each covered employee as a separate violation. The Review Commission held that OSHA had failed to give proper notice in these standards of the agency’s ability to impose per-employee citations.