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OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
July 13, 1999
Mr. Patrick J. Cleary
National Association of Manufacturers
1331 Pennsylvania Avenue, NW
Washington, DC 20004-1790
Dear Mr. Cleary:
Thank you for your November 18, 1998 letter seeking clarification of the Occupational Safety Health Administration's (OSHA's) definition of "repeated" violations. Your letter referred to the decision by the United States Court of Appeals for the Seventh Circuit in Caterpillar, Inc. v. Secretary of Labor. We apologize for the delay in our response.
The Occupational Safety and Health (OSH) Act itself does not define the term "repeatedly" (which appears in section 17, the section on penalties), but the statute has long been interpreted -- with the approval of all the courts that have addressed this issue -- as meaning two or more substantially similar violations. As the Occupational Safety and Health Review Commission (OSHRC) stated in its 1979 Potlatch decision, neither the fact that "the violations occurred at different worksites" nor "the length of time between the two violations" is relevant to a determination of a violation as "repeated." Rather, the Commission noted that such factors might be relevant to the assessment of an appropriate penalty.
OSHA's field guidance manuals have also taken into account the location of, and length of time between, the two violations. In Caterpillar, the Seventh Circuit Court of Appeals raised the question of whether the manual instructions are intended as an interpretation of what a repeated violation is or as "merely an intent to establish enforcement priorities." As previously noted, it is OSHA's interpretation that a repeated violation is simply one that is substantially similar to at least one prior violation by the same employer. The field guidance on time and geographic limitations is solely a matter of enforcement discretion.
The Agency, in other words, has chosen not to cite for repeated violations as fully as its interpretation of the term would allow. Thus, under OSHA's current enforcement policy, the Agency normally looks at a company's nationwide history only with respect to high gravity serious violations-violations where there is a high probability of death or serious physical harm to an employee. In the Agency's view, it is this type of violation that an employer, once cited, should be particularly diligent in eliminating at all of its facilities. Likewise, it is OSHA's policy to normally classify a violation as repeated only if it is being issued within three years of the previous citation.
The Seventh Circuit also expressed its concern that "substantial similarity" must be defined in a manner that will "distinguish between repeated violations that reflect simply the scale of a company's operations and those that indicate a failure to learn from experience . . . the citation for the first violation [must] place the employer on notice of the need to take steps to prevent the second violation." OSHA is in full agreement with this principle and believes that both its enforcement guidance and the caselaw of the Review Commission and the courts have been consistent with it. Application of this principle assures fairness even to very large employers. In Caterpillar, for example, the court agreed with OSHA's determination that there was substantial similarity between the company's failure to provide a mechanical barrier guard on a power press to protect the operator's hands and the company's subsequent failure to assure such protection on another press by allowing an electric barrier (electric eye) to be disabled.
Although large employers, because of the scale of their operations, may have more situations that potentially could become repeated violations, large employers are typically in a better position to disseminate information within their organization about OSHA citations, and thereby, avoid similar violations.
I hope you find this information helpful. If you have any further questions, please feel free to contact Richard Fairfax, Director of Compliance Programs, at 202-693-2100.
Charles N. Jeffress