Repeat Classifications: Fed/OSHA Can "Look Back" in Anger

In an ideal world - or even a less imperfect one - employers could rely on a federal agency’s stated policies. But we now have more proof that employers who do so are bound to be disappointed.

The Second Circuit of the federal Court of Appeals recently held that Fed/OSHA is not obligated to follow its own guidance to its inspectors in its Field Operations Manual (FOM, for you acronym phreaks). Specifically, Fed/OSHA was not bound by the guidelines for calculating the “look back” period for classifying a violation as repeat.

In Triumph Construction, Fed/OSHA issued a citation to the employer related to a cave-in which occurred in 2014. The citation was classified as repeat because the company had a record of two other cave-ins: one in 2009 and one in 2011. At the time this citation was issued the FOM limited the “look back” period for repeats to three years. [The period was extended to 5 years in the waning days of the Obama Administration.]

“Wait a minute!” said Triumph. “Those previous events happened over three years before this one!” To which the Court replied, in so many words, “So what?”

The Court found no support for a time limit on repeats in either the Occupational Health and Safety Act or the Code of Federal Regulations sections which implement the Act. And, it confirmed prior cases which held that the FOM is not binding on Fed/OSHA. The FOM provides guidance only, the Court said. Decisions to ignore it are not punishable.

So, if you are in a Fed/OSHA jurisdiction, you may never live down your past.

But there’s good news here for California employers. When Fed/OSHA imposed the 5-year “look back” on us, Cal/OSHA enshrined it in a regulation: Title 8, California Code of Regulations section 334(d), and not its version of the FOM, the Policies and Procedures Manual.

Therefore the logic of the Second Circuit would not apply to support an attempt here to “look back” more than five years.

And to think that we were ungrateful when section 334 was amended.

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