OSHA’s “Bible” is the Field Operations Manual (“FOM”). Every action taken during an inspection through the issuance of citations is to be subject to the guidance issued in the FOM. Among the guidance offered by the FOM, is that a repeat citation is only to be issued if the employer was cited for the same issue within the preceding three years (a citation will be issued as a repeated violation if ... “[t]he citation is issued within 3 years of the final order date of the previous citation or within 3 years of the final abatement date, whichever is later.”)1 The US Court of Appeals for the Second Circuit recently upended this rule and now employers can be cited for a repeat citation no matter how long ago the prior citation was issued.
In Triumph Construction Corporation v. Secretary of Labor, OSHA issued a repeat citation to an employer in 2014 that had been cited twice in the past (2009 and 2011). Triumph contested the characterization of the citation as a repeat citation because it was issued outside the three year window set forth in the FOM. The Court of Appeals rejected the appeal on the basis that the FOM’s guidance was not based on anything within the Occupational Safety and Health Act or any of the regulations promulgated under that Act. The Court of Appeals also stated that the FOM is a guidance document and is not binding on OSHA.
Employers are now subject to a review of their citation history from 1971 through present at all locations (as opposed to just the particular work site being inspected) when OSHA is contemplating issuance of citations arising from inspections. Repeat citations carry the same penalty ($129,336) as willful citations and can be the basis of submission to the Severe Violator Emphasis Program (which creates additional layers of scrutiny and compliance obligations). With the increased penalties over the last couple of years, this decision, and OSHA’s increasing rate of inspections2 employers need to do more now to be compliant and prepared to deal with OSHA than ever before.
This was later extended to five years, but at the time the citation at issue was issued, the “look back” period was three years long. The FOM currently contains a five year look back period. 2
OSHA recently issued a press release indicating that there were more inspections during fiscal year 2017 than in any of the preceding five years.