Last week, the Seventh Circuit Court of Appeals affirmed a willful OSHA citation against an employer that delayed calling for emergency services for 90 minutes after an employee became trapped in a permit-required confined space. Instead of calling 911, the manager concluded that the employee’s life was not in jeopardy and permitted untrained co-workers to try to extricate him. These efforts were unsuccessful, and by the time that rescue services removed him from the space, he had suffered serious injuries.
In Dukane Precast, Inc. v. Perez, the employer contended that the citation should not be classified as willful because OSHA’s confined space rules do not specifically require that employers immediately call 911 after an employee becomes trapped. The Seventh Circuit disagreed, noting that this literal interpretation of the regulations would lead to an absurd result. Although the term “willful” is not defined in the OSHA Act, the court stated that if the employer knows of the risk and fails to take adequate steps to avoid it, this falls within the common understanding of willfulness.
Although the employer in this case had not complied with confined space regulations, it might have avoided the willful classification if it had promptly and properly reacted to the accident once it occurred. Employees should be instructed to always immediately contact emergency responders in the event of any serious injury or potential for serious injury. Willful violations increase OSHA penalties by 10 times, and in many states allow injured employees to file lawsuits against the employer that would otherwise be precluded under Workers’ Compensation laws.