OSHA Citation and Penalty Vacated

By Kaitlin H. Paxton July 7, 2020
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construction worker wearing a safety harness

​The 6th U.S. Circuit Court of Appeals ruled that a lack of sufficient notice required an Occupational Safety and Health Administration (OSHA) citation and penalty to be vacated.

Lake Building Products manufactures steel-framed structures. The company was working on a 28-foot-high project in June 2016 when an OSHA compliance officer visited the site. The employees at the top of the structure had safety harnesses on while accepting bundles of steel decking from a crane, but the harnesses were not anchored to anything. So, the officer cited the employer for not complying with OSHA fall-protection requirements.

The employer contested the citation, arguing that its employees were acting as "connectors" at the time, so they were exempt from fall-protection requirements. While fall protection is required for any steel work above 15 feet, the regulations specifically carved out an exemption for connectors, which are defined as "an employee who, working with hoisting equipment, is placing and connecting structural members and/or components," if he or she is working at heights between 15 and 30 feet. This exemption was created to help connectors escape a collapse they may not be able to avoid if restrained.

The administrative law judge (ALJ) found that the employees were not acting as connectors because they were only placing the components, not connecting them. The Occupational Safety and Health Review Commission declined to review the decision, making the ALJ's opinion the final order. The employer filed a petition for review with the 6th Circuit, which was granted.

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The employer argued that an employee is a connector when he or she is either placing or connecting structural members. The appeals court disagreed because the regulations defined a connector as one who "is placing and connecting structural members and/or components." The appeals court also rejected other examples offered by the employer to demonstrate its interpretation was proper.

Nonetheless, the appeals court did find those other examples, as well as testimony from a member of the advisory committee that recommended the regulation, supported the employer's argument that it lacked sufficient notice of the correct interpretation. The appeals court explained that the drafting of the regulation was "less than artful" as a connector would be unable to literally place and connect steel simultaneously, and it did not expect the employer to "exhaust all tools of construction" to resolve the uncertainty created by the drafting.

Moreover, because OSHA enforced the regulation only this one time in the 15 years since the regulation became effective, despite many companies having the same understanding of the exemption as Lake Building Products, the appeals court vacated the citation and penalty.

Lake Building Products Inc. v. Secretary of Labor, 6th Cir., No. 16-1300 (May 6, 2020).

Professional Pointer: This case is a good example of a company being saved by a technicality. It is best for an employer to do its due diligence upfront to ensure that its actions qualify for an exemption rather than assume its interpretation is correct.

Kaitlin H. Paxton is an attorney with Kamer Zucker Abbott, the Worklaw® Network member firm in Las Vegas.

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