CSG Law Alert: OSHA Look Backs: No time limits

A recent Court Decision by the United States Court of Appeals for the Second Circuit held there is no time limitation on OSHA’s ability to look back at prior citations in order to classify a new citation as a repeat citation and thereby seek a larger penalty. The issue in Triumph Construction Corporation v Secretary of Labor, 885 F.3d 95 (2018), was whether the three-year look back period used prior to 2015 or the subsequent five-year look back period applied to a repeat citation issued to Triumph in 2015 for a cave-in at an excavation site in lower Manhattan. To establish the repeat classification, OSHA had relied upon two prior citations issued in 2009 and 2011 to Triumph for violating the same excavation standard. Triumph contended to the Court that the Occupational Safety and Health Review Commission improperly upheld the contested repeat citation.

Triumph argued that prior to 2015, OSHA had used a three-year look back period to determine a repeat citation and that OSHA’s subsequent decision to use a five-year look back period in 2015 was an arbitrary one. These look back periods were included in OSHA’s Field Operations Manual effective at the time of the citations. The Second Circuit found that it did not matter whether a Manual prescribed a three-year or five-year look back period. It noted that neither the Occupational Safety and Health Act nor its implementing regulations impose time limits when determining if a citation is considered a repeat citation. The Court held that a time period set forth in a Manual “is only a guide” and does not bind the Commission to a specific look back period. As neither the Commission’s precedent nor the Manual limited OSHA to any look back period, the Commission did not abuse its discretion by relying on prior violations more than three years old in upholding the classification of the citations.

What this means is that OSHA is not restricted to any look back limitation when determining to classify a citation as a repeat citation. With OSHA substantially increasing its maximum penalties for willful or repeated citations to $130,000 (effective 1/2/18), employers should seriously consider contesting citations to which they have a good faith defense so that those citations do not later form a basis for a repeat citation.