Recent Decision by Eleventh Circuit Court of Appeals May Change Ground Rules

Gary Auman

Gary Auman (www.dmfdayton.com) is a Partner in the law firm of Dunlevey, Mahan & Furry in Dayton, Ohio. He graduated with an electrical engineering degree from the University of Louisville in 1969, and a law degree from The Ohio State University in 1976. Since then, his practice has focused on defending employers in workers’ compensation and OSHA cases. In 2002, Mr. Auman was awarded the Distinguished Service to Safety Award by the National Safety Council. He has worked with OSHA in its development of safety and health standards, and he has defended OSHA cases in several federal appellate courts. Mr. Auman also represents 4 national and regional trade associations in the construction industry. He can be reached at gwa@dmfdayton.com.

February 1, 2012

On December 19, 2011, the Eleventh Circuit Court of Appeals issued a decision in the case of Compass Environmental, Inc. v. Occupational Safety and Health Review Commission; Department of Labor, Case No. 10-9541 (Compass). In this decision, the Eleventh Circuit significantly changed the test to be used by the Occupational Safety and Health Administration (OSHA) when determining whether an employer adequately trained employees about hazards to which they had potential exposure. The Eleventh Circuit Court of Appeals hears appeals from lower federal courts in the states of Alabama, Georgia, and Florida. It is reported to be the busiest Court of Appeals in the federal court system.

The training in the case focused on hazard recognition training, which is required under 29 CFR 1926.21(b) (2). Since 1994, OSHA has applied a four-part test set forth in Secretary v. Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (1994). Under the four-part test, to establish a violation of an occupational safety or health standard, the Secretary of Labor had to prove: (1) the applicability of the cited standard; (2) the employer’s noncompliance with the standard’s terms; (3) the fact that an employee had access to the violative conditions, and (4) the employer’s actual or constructive knowledge of the violation. Actual or constructive knowledge has been defined as whether the employer knew or “with the exercise of reasonable diligence could have known” of the violative conditions.

In the Compass case, the Eleventh Circuit Court of Appeals affirmed a decision by the Occupational Safety and Health Review Commission (OSHRC) and eliminated the four-part test. The Court affirmed the adoption of a “prudent employer” test. In other words, the Review Commission concluded that in the facts of the case before it, a reasonably prudent employer would have anticipated the employee’s exposure to the hazard and provided him with training addressing the hazard. In its discussion in the body of its decision, the Eleventh Circuit stated that the generic test set out in Secretary v. Atlantic Battery Co., supra., while appropriate for many types of OSHA violations, is ill-fitted in determining whether the training standard requirements found in 29 C.F.R. 1926.41(b)(2) have been violated. The court stated that “an employer’s obligation to train is accordingly ‘dependent upon the specific conditions [at the work site], whether those conditions create a hazard, and whether the employer or its industry has recognized the hazards.'”

The standards set out by the Eleventh Circuit in its decision mirror very closely the general duty clause found in Section 5(a)(1) of the Occupational Safety and Health Act. The general duty clause requires that an employer provide a place of employment free of recognized hazards that are causing or likely to cause death or serious physical harm. The recognized hazard in the general duty clause is defined as a hazard recognized by the employer or its industry.

In Compass it appears that the company was constructing an underground slurry wall at a surface mine in Colorado. As part of the project, the company was using a mobile excavator with a 75-foot boom to dig a trench for this slurry wall. The excavator had a two-person crew, which consisted of the excavator operator and a trench hand. The responsibility of the trench hand was to check the trench depth, grease the excavator, and watch for problems with the excavator that the operator could not see. In fulfilling his responsibilities of greasing the excavator, the trench hand held a rubber and metal hose with a metal nozzle connected to the excavator. He greased the excavator after it completed each cut, and as the excavator moved, the trench hand moved along with it, holding the grease line.

The facts further are reported to be that during the first week of the project, Compass prepared a job safety analysis (JSA) and instructed employees on the hazards identified within it. The JSA specific to the excavator operator and trench hand identified various hazards, one of which was energized power lines that crossed one end of the construction site. According to the JSA, the excavator operator and trench hand were to be instructed to maintain a 20-ft clearance between the excavator and the overhead lines. While the excavator operator began on the project on its first day, the trench hand did not begin working on the project until the week after the JSA was completed and training had been provided to all employees on the job site. The trench hand was given individual training, but that did not include instructions concerning the overhead power lines.

It appears that Compass had identified the potential hazard with the overhead power line and had communicated to its customer that when it approached the power line in the middle of March, the line would have to be de-energized and removed so Compass could move its equipment into the area. It appears that the excavator was still 200 ft away from the power line on March 18, 2006, the day of the accident. One other salient fact important in this case is that at the end of each work day, the operator moved the excavator about 20 or 30 ft away from the trench onto more stable ground and then waited for a portable 300-gallon fuel tank to be brought to the excavator so it could be refueled. There was no policy requiring this refueling procedure.

On March 18, for some reason, the excavator operator decided not to follow his prior procedure and wait for the fuel tank to be delivered, but instead moved the excavator to where the fuel tank was located under the overhead power lines. As the trench hand walked beside the excavator with the excavator’s grease line in his hand, the boom was extended so the trench hand could reach it with the grease gun. As the excavator came near the fuel tank, the boom came close enough to the power line for the current to pass to the excavator and then through the grease line to the trench hand, resulting in his death.

Following OSHA’s investigation, Compass was cited for two serious violations of the Code of Federal Regulations. One item alleged a violation of 29 CFR 1926.21(b)(2). More and more construction industry employers are being cited under this standard. This standard states: “the employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.”

The Court concluded that because of the JSA completed by Compass, and the fact that the employees were trained under the JSA concerning the excavator, which included training regarding the overhead power lines, that Compass recognized a hazard to its employees. Compass argued that it had no reason to anticipate that the trench hand or the excavator would ever have any exposure to the overhead power lines. Based on the practices adopted by the excavator operator, the excavator was never moved close to the power lines. It always remained next to the trench to be refueled and the fuel tank was brought to the excavator. Even on the 18th it operated approximately 200 feet from the overhead power lines. Therefore, under the four-part test established in the Atlantic Battery Co. case, the standard for which Compass was cited was not applicable to the facts of the case, nor did Compass have actual or constructive knowledge of a hazard.

Under the fourth definition in Merriman’s Webster Collegiate Dictionary, Tenth Ed., “prudent/prudence” is a caution or circumspection as to danger or risk. It would seem to this author that even a definition of "prudence" requires that the party whose prudence is being judged must be aware of a risk. This is confirmed in the above definition of prudent/prudence. The Eleventh Circuit seems to be stretching the definition beyond whether the employer is necessarily aware of a hazard to establish a test that includes whether the employer or its industry has recognized the hazard. This broader definition is not found in Webster’s.

Typically, with OSHA, Appellate Court decisions apply only to those employers working within the jurisdiction of the Appellate Court rendering the decision. In this case, the applicability of the decision could be limited to Florida, Georgia, and Alabama. However, this "rule of thumb" does not restrict OSHA’s application of the decision.

All employers in the construction industry should be aware of and prepare themselves for a broad application of this decision in all states under federal OSHA jurisdiction. Those who wish to minimize the likelihood of being cited for failing to properly train their employees on each job site as required by 29 C.F.R. 1926.21(b)(2) should consider the following steps:

  1. Have an effective safety program.
  2. Establish and stick to a procedure to perform a JSA on all aspects of every job you perform.
  3. Be sure you train all employees on the job site who are identified under your JSA as having any potential exposure to the hazard identified by the JSA.
  4. Be sure that all training received by employees is both effective and appropriate for the hazards to which they may have exposure.
  5. As required under 29 C.F.R. 1926.20(b)(2), have regular and frequent safety inspections performed on the entire job site, as well as all materials and equipment on the job site, by qualified, competent persons.
  6. Document these inspections.
  7. Finally, have an effective and uniformly enforced safety disciplinary program to ensure that safety training is implemented at all times during the job.