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The Occupational Safety and Health Review Commission (“OSHRC”) rejects OSHA’s theory of enterprise-wide abatement [US]

The Occupational Safety and Health Review Commission (“OSHRC”) reviews contested Occupational Safety and Health Administration (“OSHA”) citations. First, an administrative law judge (“ALJ”) decides the merits of the case. Either party may then appeal to the Commissioners.

OSHA issued three citations to Delta Elevator Service Corp. (“Delta”) while performing work on an elevator in Massachusetts. Delta contested the violations and OSHA dropped two citations. OSHA then attempted to amend the complaint to allege that Delta’s employees performed similarly unprotected work at other worksites. OSHA wanted to compel an “enterprise-wide” abatement against Delta for the alleged unsafe practices at worksites not originally cited by OSHA.

The ALJ dismissed the final citation because OSHA alleged a general industry standard violation, but the ALJ found the company to be performing construction work. Additionally, the ALJ dismissed OSHA’s enterprise-wide theory because there have been no cases establishing that level of relief. Other employers had previously entered into voluntary settlement agreements with OSHA and enacted enterprise-wide reforms. OSHA also did not provide sufficient evidence that Delta violated the safety standards at other sites.

According to EHS Today, this decision is the first decision on OSHA’s enterprise-wide theory. OSHA may appeal the decision to the OSHRC, and potentially the Court of Appeals. However, this also risks a repudiation of the theory on a binding basis. Were OSHA to appeal, and succeed, employers would be vulnerable to potentially wide-ranging citations.


Stephen Yohay, EHS Outloud Blog, EHS Today, “Judge Rejects OSHA’s ‘Enterprise-Wide’ Relief Theory, November 4, 2013


Red-on-line EHS Legal Counsel

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