A federal appellate court recently upheld a rule issued by the Occupational Safety and Health Administration (OSHA) that "each" failure by an employer -- in this specific case to provide personal protective equipment or training to employees -- may be considered a separate violation of the agency's standards.
Under the Occupational Safety and Health Act, the secretary of labor is empowered to promulgate workplace standards that are "reasonably necessary or appropriate" for employee health and safety, and to issue citations and penalties against employers who violate such standards. Under current law, the penalties vary based upon the severity, frequency and willful nature of the violations, up to $70,000 per violation. Employers may appeal such citations and penalties to an independent tribunal, the Occupational Safety and Health Review Commission.
In this case [National Association of Home Builders v. OSHA, No. 09-1053, U.S. Court of Appeals for the District of Columbia Circuit (decided April 16, 2010)], the employer hired 11 workers to renovate a building containing asbestos but failed to train the workers or provide them with respirators. The Occupational Safety and Health Administration (OSHA) then cited the employer for 11 separate violations. The Occupational Safety and Health Review Commission, however, rejected OSHA's employee-by-employee approach, and decided that the standards required the employer to institute a single training program and to provide respirators to employees as a group. Thus, the commission ruled that only two violations had occurred. But OSHA subsequently amended its rules to state that the employer's failure to provide the personal protective equipment or workplace training constituted not one violation of the applicable health and safety standards, but separate violations for each employee who did not receive the equipment or training.
In its decision, the federal appeals court based in Washington, D.C., rejected the claim by trade associations, which petitioned for review of the new rule, that OSHA lacked the statutory authority to issue the amendments to the rules. In so doing, the appellate court let stand OSHA's revised rules allowing the issuance of separate citations for each employee affected by a single workplace violation under the Occupational Safety and Health Act.