OSHA Update

OSHA Loses Bid to Argue Supervisory Liability

By Keith L. Pryatel
Kastner Westner & Wilkins LLC
The KWWLaborLaw.Communicator
Vol 7, No. 4 - Fall 2006

In a decision that is seen by many as fundamentally altering the legal landscape surrounding the federal Occupational Safety and Health Administration ("OSHA"), a federal appeals court recently ruled that OSHA cannot demonstrate the requisite "knowledge" of a violative safety condition simply by pointing to a supervisor's knowledge. Yates & Sons Co. v. Occupational Safety and Health Review Commission.

The decision is viewed as a significant setback for OSHA, which traditionally relies upon nothing more than a foreman's "knowledge" of an alleged violative condition in order to hold the employer responsible for a health or safety violation.

In Yates & Sons, a construction crew foreman was observed by two OSHA officers working on a 65-foot sloped embankment without wearing any fall protective gear. There was no question in the case that the failure of the foreman to don the gear violated applicable OSHA safety standards and rules. Noting that Congress never intended to impose "strict liability" for alleged OSHA violations, the U.S. Court of Appeals for the Fifth Circuit held that OSHA had not carried its burden of proving that Yates & Sons Construction Company possessed the requisite "knowledge" in order to establish an OSHA violation. The Court expressly rejected OSHA's theory that because a foreman (i.e., supervisory employee) knew of the violative condition, that that "knowledge" should necessarily be imputed to his employer. The Court stated that "imputing to the employer the knowledge of a supervisor of his own violative condition without any further inquiry would amount to the imposition of a strict liability standard, which the Act neither authorized nor intends."

The Fifth Circuit therefore held that "a supervisor's knowledge of his own malfeasance is not imputable to the employer where the employer's safety policy, training, and discipline are sufficient to make the supervisor's conduct in violation of the policy unforeseeable." OSHA has vowed to appeal this adverse federal ruling, and also has asked that the full judicial panel of the Fifth Circuit review the decision that was issued by a three-judge panel. If the decision is left to stand, the need for employers to train their workers in all safety aspects, and to have in place comprehensive health and safety policies and procedures becomes all the more important because if in place, OSHA cannot properly issue safety citations and fines where a supervisor or foreman acts in contravention of his or her employer's written policies.

Importance of OSHA Interpretive Letters Placed in Doubt

A recent decision by the Occupational Safety and Health Review Commission places in doubt the continued credibility of private interpretation letters that are often issued by the Occupational Safety and Health Administration (Secretary of Labor v. Beverly Healthcare-Hillview). Many of OSHA's regulations are what are known as performance-oriented standards. These types of regulations spell out prohibited conduct, but do not detail how compliance under the regulation is to be achieved.

Frequently, OSHA fills in the "how to achieve compliance" gap by issuing private letter rulings that are archived on its website. In Beverly Healthcare, the issue was whether OSHA's blood-born pathogen standard required employers to pay for time spent and travel costs incurred by employees obtaining medical treatment after needle-stick injuries. Although the regulation itself did not address the issue, several OSHA interpretive letters expressly stated that employers must cover the cost of travel and lost time.

In a split decision, the Occupational Safety and Health Review Commission concluded that the regulation itself was vague, and that employers did not receive "fair notice" that OSHA required reimbursement of costs simply by virtue of the private letter rulings that appeared on its website.

The Review Commission's decision is significant because it questions whether OSHA's interpretation letters can ever satisfy the requisite proper notice under a vague, non-detailed safety regulation. OSHA may have to invent a more formal mechanism to communicate and warn employers about its unique interpretation of admittedly vague regulations.


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