OSHA’s Burden of Proof and Contesting the “Knowledge” Element

In order to establish a violation in any case, OSHA must prove the following four elements: (1) the cited standard applies; (2) the employer failed to comply with the standard; (3) employees had access to the violative condition; and (4) the employer knew, or with the exercise of reasonable diligence, could have known of the violative condition.

A recent decision from the Occupational Safety and Health Review Commission (OSHRC) (March 7, 2014, Docket No. 12-2152), provides an opportunity to discuss the fourth element, the “knowledge” element. Briefly, in this case, the general contractor was issued a citation for permitting two employees to perform work from an aerial lift without being tied off at a school renovation project. The contractor conceded that OSHA had established the first three elements, but contested the fourth element, specifically, that the contractor knew, or with the exercise of reasonable diligence, could have known of the violative condition.

The OSHRC rejected the contractor’s arguments, finding that although the contractor’s superintendent did not have actual knowledge of the employees’ failure to tie off, the superintendent could have found out about the conduct “with the exercise of reasonable diligence.” In support of its decision, the OSHRC emphasized the following:

  • the contractor did not provide safety training classes for the employees who were in the aerial lift;
  • the contractor’s safety program was only communicated to its employees at the discretion of the supervisor;
  • the contractor did not have a written work rule specifically addressing the requirement to tie off while working from an aerial lift;
  • the two employees in the aerial lift spoke Spanish as their first language and the contractor did not have a Spanish version of the safety manual;
  • although the two employees had been in the aerial lift for six hours in plain view, the contractor’s superintendent never observed them because he remained in his office in the school the entire time;
  • the contractor’s superintendent did not develop any Job Safety Analysis (“JSA”) forms for the subject project; and
  • the contractor did not discipline the two employees for working in the aerial lift without fall protection.

The above factors relied upon by the OSHRC provide guidance for any contractor to follow. Although the factors are not an exhaustive list of what should (and should not) be done on any site, they provide some guidance.

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