By Trent Cotney – Excerpted from the Cotney Construction Law Update Newsletter – September 2018

Prior to 2015, OSHA’s Field Operations Manual states that an employer may be cited for a repeat violation if “the 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.” In simple language this meant that OSHA may look back no further than three years for citations to cite an employer for a repeat violation. This time period was increased to five years in 2015.

Earlier this year, the United State Court of Appeals for the Second Circuit found that OSHA is not bound by its five year look back policy as stated in the Field Operations Manual. The Court stated that neither Occupational Safety and Health Act nor any regulations contained within the Act contain temporal restrictions on the amount of time OSHA may look back for repeat violations.

Employers will now be vulnerable to repeat violations based on prior citations given at any time in the past. This decision will have huge impacts on employer’s decisions to contest citations as they may become the basis for a repeat citation in the future. As OSHA continues to broaden their enforcement authority, employers need to be sure they have proper policies in place to handle issues regarding repeat violations moving forward.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

About the Author

Trent Cotney of Cotney Construction Law is Florida Bar Certified in Construction Law, General Counsel and a member of the Florida Refrigeration & Air Conditioning Contractors Association (FRACCA) and a member of RACCA. For more information, call 813-579-3278 or go to www.hvaclawyer.com.