A recent decision by the Eleventh Circuit held that the Occupational Health and Safety Administration (OSHA) was justified in assessing a “willful” safety violation–the agency’s most serious citation–against an HVAC contractor following a jobsite fall resulting in the death of a construction worker.
In Athens, GA, a contractor dispersed a three-person team to install an HVAC system at a car dealership in 2015. In a warehouse area of the facility, where the roof had been perforated in anticipation of skylight installations, the rough openings were covered only with plastic sheathing, rather than plywood or temporary guard rails. When a worker attempted to saw cut an opening in the vicinity of a skylight, he lost his balance when the sawblade dug into the roofing material. The worker suffered a fifteen-foot fall to the floor below, resulting in his death.
A subsequent OSHA investigation resulted in a “willful” safety violation against the contractor based on OSHA’s finding of “reckless disregard” that rose to the level of a willful violation of OSHA’s fall protection standards. The safety violation was accompanied by a $49,000 fine.
In challenging the violation and fine, the contractor argued that the “willful” grading was in error because its site foreman simply was ignorant of the OSHA fall protection requirements due to alleged deficiencies in the contractor’s training program. The contractor argued that its flawed training program should preclude a finding of “willfulness.”
The Eleventh Circuit rejected the contractor’s argument, stating that “To hold that such inadequacy – and the resulting unfamiliarity – precludes classification of a violation as willful would perversely allow [the contractor] to use its ineffective training as a defense against OSHA’s most serious charge . . . .” The court also concluded that even though the foreman was unaware of the precise requirements of the regulation, his actions represented “reckless disregard for employee safety.” Though the foreman testified he believed his crew would be safe so long as they remained six feet from the skylight openings, he knew they would be operating within five feet of the openings. This led the court to opine that even if the foreman had been cognizant of the required safety precautions, he likely would not have followed them.
One takeaway from this case is that contractors and their counsel should think twice before employing an “ignorance” defense when negotiating resolution of an OSHA violation with agency representatives. The Eleventh Circuit has made clear that unfamiliarity with the OSHA safety requirements will provide no cover from imposition of OSHA’s most serious violation. When an accident occurs at the jobsite, affected contractors are advised to consult with counsel immediately to discuss a strategy for navigating the OSHA investigation that is likely to follow.
The case is Martin Mechanical Contractors, Inc. v. Secretary, U.S. Department of Labor, 17-12643, 2018 WL 1474904 (11th Cir. Mar. 27, 2018).