addressed whether OSHA is limited in the period of time on which it may “look back” at prior violations to assess whether it may issue a repeat citation. Although the OSH Act does not con- tain any limitations on the look-back period, OSHA has issued a guidance document known as the Field Opera- tions Manual, in which OSHA stated that the look-back period for repeat violations was three years. In 2016, OSHA amended the Field Operations Manual, expanding the look-back period to fi ve years. Given that the OSH Act was silent on the look-back period, employers reasonably relied on OSHA’s own guidance to assess whether it may be subject to a repeat citation based on a prior violation. T at all changed with the Appellate Court’s decision in the Triumph case. T e employer in Triumph received

a citation in 2009 and another cita- tion in 2011 for violating the same excavation standard. In 2015, more than three years after OSHA issued the previous citations, but before OSHA expanded the look-back period to fi ve years in its amended Field Operations Manual, OSHA is- sued another citation to the employer for violating the same excavation standard and classifi ed the violation as repeat based on the prior citations. T e employer argued OSHA was bound by the three-year look-back period set forth in the manual. T e commission and Appellate Court disagreed, holding the OSH Act does not contain any temporal limitation on the look-back period, and that the manual was only a guidance docu- ment that did not bind OSHA. In affi rming the repeat citation issued to the employer, the Appellate Court did not place any temporal restriction on the look-back period. T e Appellate Court’s decision is

instructive and, from an employer’s perspective, troubling. While the law has always been clear that guid- ance documents are not binding on either the governmental agency or the entities subject to regulation by that agency, parties have always felt a sense of comfort that they operated in compliance with the law if they oper- ated in compliance with the agency’s

guidance document. In OSHA matters, employers may still rely on OSHA interpretations set forth in its various guidance documents, par- ticularly to establish good faith and intent, and employers may still argue that they operated in compliance with such OSHA standards in a contested case. T e Triumph case, however, is a harsh lesson to employers that compliance with guidance documents does not necessarily establish compli- ance with the law. In theory, OSHA can issue a re- peat citation to an employer based on a violation that occurred in the 1970s, but in practice OSHA does have certain restraints. As a generalization, it will be diffi cult for OSHA to es- tablish how a violation that occurred in the distant past was substantially similar to a current violation. Still, OSHA will likely push the envelope and issue repeat citations based on prior violations that occurred more than fi ve years in the past, particularly

when OSHA believes it can establish substantial similarity. As employers are now on notice that OSHA has no temporal limita- tion to the look-back period, em- ployers should give serious consid- eration to fighting smaller citations. In the past, employers have routinely settled citations with modest mon- etary penalties because the time and expense of litigation did not justify a prolonged fight with OSHA. That business justification for settling smaller citations may no longer ap- ply, as employers are now subject to a maximum penalty of $129,336.00 for each repeat citation, as well as other business implications that come with repeat citations.

Darren Hunter is a partner and an experienced OSHA practitioner in the Chicago law firm of Rooney Rippie & Ratnaswamy LLP. This column does not constitute legal advice or the formation or proposal of an attorney-client relationship to or with any person or entity. Hunter can be contacted at darren.hunter@ or at 312-447-2818.


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