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Labor, Employment and Benefits
Newsletter - January 2000
 
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OSHA Must Prove Lack Of Reasonable Diligence
 
 January 1, 2000
 

In the recent case of Secretary of Labor v. Ragnar Benson, Inc. (OSHRC Sept. 26, 1999), the Occupational Safety and Health Review Commission held that, in order to sustain a violation against an employer, OSHA has the burden of proving that the employer knew of the violation.

In Ragnar, an OSHA Compliance Officer noticed what he believed to be violations while he was driving by a construction site in Skokie, Illinois. He observed what appeared to be a missing guardrail from a second-story scaffolding. When he reached the second story he found two openings in the concrete floor that had been covered with plywood that was not fastened in place or marked. The employer was cited for these violations.

On review, the Commission held that, in order to prove that an employer violated an OSHA standard the Secretary of Labor must prove that:

  • the standard applied to the working conditions cited
  • the terms of the standard were not met
  • employees were exposed or had access to the violative conditions
  • the employer either knew of the violative conditions or could have known with the exercise of reasonable diligence

The Commission held that an employer's duty is "to take reasonably diligent measures to inspect its worksite and discover hazardous conditions; so long as the employer does so, it is not in violation simply because it has not detected or become aware of every instance of a hazard."

It appears that Ragnar had an active safety program in place. Part of the daily duties of the job superintendent was to coordinate subcontractor work and point out any safety violations. The project manager visited the site once a week as did its general superintendent/safety manager. All three of these employees testified that they were not aware of the violative conditions. Based upon these facts, the Commission held that the Secretary of Labor did not meet its burden in establishing that the employer's failure to discover the violative condition was due to a lack of reasonable diligence.

The lesson to be learned is that an employer's active safety program acts not only as a shield in guarding its employees from hazards associated with the workplace, it can also be used as a sword to defeat citations issued by OSHA.

For more information please call Michael G. Murphy, P.E. at 1-888-688-8500.

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