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Ruling opens door to much wider OSHA authority

Posted On: Jan. 14, 2016 12:00 AM CST

The Occupational Safety and Health Administration may have the authority to order employers to abate hazards across all their worksites, even ones it has not inspected for safety and health violations, according to a recent administrative decision that could lead to a significant expansion of the agency's regulatory powers.

The decision emanates from OSHA citations and proposed fines totaling $330,800 levied against Warren, Michigan-based Central Transport L.L.C. in November 2014 for 14 violations at the freight hauler's Billerica, Massachusetts, shipping terminal — citations contested by Central Transport with the independent Occupational Safety and Health Review Commission.

In December 2015, Administrative Law Judge Carol Baumerich denied Central Transport's motion asking the commission to strike the Labor Department's request for an order compelling Central Transport to comply with OSHA's powered industrial truck standard at all its locations, according to the judge's order. Judge Baumerich determined that the Occupational Safety and Health Act's provision authorizing the remedy of “other appropriate relief” could allow OSHA to proceed with its request to require an employer to abate hazards at all worksites, including those not inspected by the agency.

“I think it is significant and precedent setting,” said Catherine Wilmarth, an associate in the Washington office of Kelley Drye & Warren L.L.P.

Contentious litigation

It is fairly common for these enterprisewide abatement orders to exist in negotiated settlements between OSHA and employers, such as the one finalized last month between the agency and retailer Dollar Tree Inc., with companies agreeing to corporatewide abatement actions in exchange for lower monetary penalties, she said. However, this time OSHA is seeking enterprisewide abatement in contentious litigation with Central Transport, which has 170 shipping terminals that could be affected.

The ruling allows OSHA to proceed with discovery and present evidence that enterprisewide abatement is justified. While the ruling is being celebrated by the agency, the judge has not ordered the enterprisewide abatement OSHA is seeking and wants to hear evidence that the violation exists at multiple locations — although the burden of proof for securing such an order is unclear, Meagan Noel Newman, a Chicago-based partner and co-chair of the environmental, safety and toxic torts practice group at Seyfarth Shaw L.L.P., said in an email.

The ruling could also be appealed to the full commission or to a federal Circuit Court of Appeals. Central Transport did not respond to a request for comment.

Although the decision is likely to be appealed, according to legal experts, employers must be aware of the possibility that they could face an enterprisewide abatement order from OSHA and should be examining their worksites for trends or patterns of injuries, illnesses or overarching safety concerns at multiple locations — as OSHA would.

“I think employers, as they look for these patterns and trends, need to make sure that the lines of communications between all of their locations are open so that the supervisors or managers of these locations are aware of any safety concerns or citations that may have been made against the company at one site that may now impact all the other locations as well,” said Amy Puckett, a Charlotte, North Carolina-based associate at Bradley Arant Boult Cummings L.L.P.