Look-Back For Repeat Violations Is Unlimited

In some of our recent Tuesday Trainings, we’ve illustrated the OSHA inspection process. Of course, when OSHA discovers a hazardous condition in any workplace that constitutes a breach of regulations, they may impose a fine on the company. Since such fines are relative to the hazard classification, not the size of the business. The current maximum fine for a violation termed ‘serious’ is just less than $13,000 (‘serious’ not being as egregious as ‘willful’). That amount will not likely present a large financial obstacle to a big corporation, but it can be very serious to a small business with a single facility.  However, those violations that are classified as ‘repeat’ will earn a multiple of the original fine, up to ten times the first amount, or about $130,000 in the ‘serious’ bracket. Most any company will find a penalty of that amount to be both unfortunate and notable for a specific location. And it is more than enough reason to be sure that an errant condition that presents a hazard is not just quickly corrected, but permanently rectified.

And now, it has been established that OSHA’s ‘look-back’ period is unlimited. A recent federal court decision says that no matter the period of time that has elapsed between OSHA finding the same hazard twice at the same location, the discoveries of the hazard constitutes a repeat violation.

As reported at legal analysis website Lexology, in the past, it was believed that OSHA’s Field Operations Manual determined that a violation would be categorized as a repeat occurrence only if the citation were, as stated in the manual, “issued within five years of the final order of the previous citation or within five years of the final abatement date.” As the Lexology article points out, this term was increased to five years, from the previous three, in 2015. But in the case of Triumph Construction Corporation vs. U.S. Secretary of Labor, The United States Court of Appeals for the Second Circuit stated that the five-year look-back guideline was no more than that – a guide for enforcement and not something codified by the OSH Act of 1970.

This means that any violation that is not permanently rectified could be classified as ‘repeat’ if discovered by subsequent OSHA inspections at any time. The resulting penalties will certainly be more severe than those of the original citation.

Naturally, the easiest way to avoid being a repeat offender is to maintain your facility in complete compliance. Great EHS managers across the country do so out of care for their fellow associates and because they believe in a safe-as-can-be workplace, as much as to avoid penalties. The Lexology piece recognizes this, as well as the wisdom of perhaps contesting an initial citation. If you have been cited and believe you have a good faith defense, it may very well be worth challenging the citation. If you can win that argument and absolve the violation, it would not be deemed a repeat circumstance should you be cited for the same oversight in the future. The penalty, in that case, would be an initial one and thus not as severe.

And if you are inspected or cited, keep diligent records of the entire circumstance (another good point found in the Lexology article). Regularly reviewing the results of previous inspections is a great way to compare the current state of the facility to the way it was when inspected. If you are cited (as many responsible companies are, thanks not to carelessness but honest mistakes or misunderstandings), start a running calendar of days since the citation. Note each day as an accomplishment that protects employees and saves the company from OSHA penalties. On milestone days, compare the inspection results to the present-day conditions to assure that the oversight has not returned.

Strategies for record-keeping as well as training are part of what Findlay All Hazards offers its many customers coast-to-coast. Speak with a Findlay program manager today to learn how we can help you stay free of citations.

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