October 20, 2019

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ALJ vacates OSHA General Duty Clause citation

In a recent decision that became a final order in October, Administrative Law Judge Patrick B. Augustine vacated a citation item in which OSHA alleged a violation of the General Duty Clause when “an employee conducting hot-work/welding was exposed to a fall hazard greater than 10 feet while welding on the outer steel columns located in the sixth floor of the hospital construction site. The fall protection equipment selected by the employer was not suitable for the workplace conditions.” Sec’y of Labor v. Midwest Steel, Inc., OSHRC No. 15-1471 (Sept. 13, 2017), at 11.

To sustain a citation under the General Duty Clause, OSHA must demonstrate that “the employer or industry recognized the hazard” at issue. Id. at 9. To attempt to meet its burden of proving this element, OSHA argued that “had Respondent read the most recent version of the Manufacturer’s SOP, in accordance with the ANSI standards, it would have known not to use the synthetic lanyard in hot areas of more than 180 degrees.” Id. at 17. Judge Augustine ultimately found that OSHA failed to demonstrate that the most recent version of the manufacturer’s SOP was in effect at the time the citation was issued, and as a result, “the Court cannot find the industry recognized the 180 degree limitation (the hazardous condition) at the time the Citation was issued.” Id. at 19-20. Judge Augustine continued to find that the manufacturer’s SOP that was in effect at the time of the inspection reflected the hazards that were recognized by the industry at that time.
This decision highlights the importance of reviewing and following manufacturers’ recommendations concerning the limitations and use of personal protective equipment. If an employer chooses to deviate from a manufacturer’s recommendation, the decision should be carefully evaluated and documented as part of a hazard assessment to ensure the deviation continues to provide employees with equal or greater protection from the hazard.  
Employers should always assess the factual and legal merit of any citation before accepting it since OSHA can use any accepted citation item, including an Other-Than-Serious citation, as a basis for a Repeat classification for up to five years and Repeat citations now carry a potential penalty of $126,749.

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About this Author

Daniel Flynn, Dinsmore Law Firm, Environmental and Safety and Health Attorney

Dan, a member of the Environmental Practice Group, focuses much of his practice on environmental, health and safety issues.

He has represented companies across general industry and construction with matters involving the Occupational Safety and Health Administration (OSHA), ensuring local and national clients minimize liability from OSHA enforcement actions by counseling clients on proper compliance with all OSHA standards and on proper inspection management techniques. If citations are issued, he helps clients develop and evaluate settlement...