Employers are uncertain about the difference between a “Willful” classification and a “serious” classification of an OSHA citation. I confess that I sometimes struggle to understand the basis for a particular Area Office or Judge’s decision.
First, a basic definition from the OSHA Field Operations Manual:
A willful violation exists under the Act where an employer has demonstrated either an intentional disregard for the requirements of the Act or a plain indifference to employee safety and health.
This definition seems fairly straightforward, but I’d encourage you to visit FOM, page 4-28 and review the full discussion of what may constitute a willful violation.
Since the definition may tend to vary a bit depending on the current make-up of the Occupational Safety & Review Commission, let’s review a recent decision.
In Secretary v. Elliot Construction, the Commission reversed the ALJ’s finding that two violations for overexposure to carbon monoxide (CO) were not willful, and affirmed another willful violation that the ALJ had vacated. Ouch.
The concrete contractor, used gasoline powered machines to pour and smooth concrete inside a building, which is not an unusual application. The foreman anticipated that CO from the machines’ exhaust and set up fans to ventilate the space. At various times, employees reported feeling ill. The foreman sent these employees outside, but did not stop the work. Then, the employer’s safety consultant happened to visit the work site, and advised that CO overexposure was probably occurring. the supervisor seemed unconcerned, so the consultant contacted emergency response. Two employees were diagnosed with CO poisoning.
OSHA cited the employer for willful violations – failure to conduct air monitoring, for exposing employees to CO levels above the PEL, and for the failure to implement administrative and engineering controls.
The ALJ dismissed the first item, affirmed the violation for overexposure of employees to CO, but found that the employer did not act willfully.
The Commission reversed on the inspection violation, accepting the Secretary’s argument that 1926.20(b)(2) broadly requires the employer to inspect the workplace for hazards, and in this case, air monitoring was necessary because air monitoring was the only way to determine whether CO emissions exceeded the PEL.
The Commission also rejected the ALJ’s finding that the violations for overexposure to CO and the failure to use engineering controls were not willful.
The Commission found that the supervisor’s state of mind was sufficient to impute willfulness to the employer, and the company’s past history with CO exposures and knowledge about monitoring devices precluded a good faith defense.
Note that an individual supervisor, as agent of the employer, committed the contractor’s willful acts. It was not necessary that a corporate intent be shown. Just one really bad episode of poor judgment by a supervisor.
Next time, we’ll discuss a bit more complicated set of facts, Dayton Tire.