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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