Court decision changes rules on issuing violations

A federal appeals court has loosened one of the traditional standards of proof required for OSHA to issue a violation, potentially increasing vulnerability for employers.

The case involved a citation against an employer for failure to properly barricade the swing radius of a crane. What made the case unusual was that no employee was actually exposed to danger. Rather the 6th U.S. Circuit Court of Appeals said it was sufficient that an employee could have been exposed had he or she been in the zone of danger.

According to a report on the case by the OSHA Law Update from the EpsteinBeckerGreen law firm, the decision went against “the long-standing test for OSHA to establish a prima facie violation of an OSHA standard.”

The test includes “OSHA proving by a preponderance of the evidence that:

1. The cited standard applies to the cited condition;
2. The requirements of the cited standards were not met by the employer;
3. The employer knew or should have known with the exercise of reasonable diligence about the hazardous condition; and
4. Employees were exposed to the hazardous condition.”

It is that last element of the test that the decision changes.

“This decision appears to be a departure from settled law,” according to the OSHA Law Update. “Although it ought to be limited to employers within the Sixth Circuit’s reach (i.e., Ohio, Michigan, Kentucky, and Tennessee), if the reasoning is adopted by other Circuits, employers could be opened up to liability for a parade of imagined horribles, as opposed to real world exposures.”

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