By Robert G. Chadwick, Jr.,  Partner,  Freeman, Mathis  & Gary, LLP.

A citation stemming from an OSHA inspection typically specifies (1) the hazards which must be abated by the employer, and (2) the deadline for abating the hazards.  For employers with multiple locations,  these abatement requirements have historically been limited to hazards at the location inspected by OSHA.  In recent years, however, OSHA has periodically sought to impose enterprise-wide abatement requirements even as to alleged hazards at locations not inspected by the agency.

Proposing broader abatement requirements for employers with multiple locations is not merely a remedial strategy of OSHA.  An employer subject to enterprise-wide abatement requirements is also vulnerable to future enterprise-wide inspections by the agency to  verify that the requirements are being followed.

A September 30, 2013 ruling by Administrative Law Judge William Coleman in Secretary of Labor v.  Delta Elevator Service Corp.  placed the legality of OSHA’s strategy in doubt. In rejecting OSHA’s request for enterprise-wide abatement,  Judge Coleman ruled that “while enterprise-wide abatement has occurred in [Occupational Safety & Health Review] Commission cases where the parties have agreed to such abatement in a voluntary settlement agreement … there is no Commission or other precedent holding that such abatement may be directed pursuant to the “other appropriate relief” clause in Section 10(c) of the [OSH] Act.”  He also noted: “… the requested relief in this case would require an order that (1) is not based on any work performed at a worksite where an inspection took place, and (2) is not the subject of any allegation contained in the citation …”

A December 23, 2015 OSHA news release, however, boasts of a new ruling which the agency now contends provides precedent for enterprise-wide abatement requirements.  In Secretary of Labor v. Central Transport, LLC,  Administrative Law Judge Carol A. Baumerich ruled that, under the “other appropriate relief” clause in Section 10(c) of the OSH Act, the “Commission has the authority … to  order  enterprise-wide relief in cases where appropriate.”

To be sure, OSHA’s news release may be overstating the importance of an un-reviewed decision by one Administrative Law Judge.   After all, Judge Baumerich specifically noted that Judge Coleman’s earlier 2013 ruling was “not controlling” as to her ruling.  Still, the underlying message of the news release is plain – OSHA will continue to seek enterprise-wide abatements from employers with multiple locations.  Indeed, OSHA may be emboldened to make such requests more commonplace.  Employers with multiple locations must thus consider that the financial stakes of an inspection may have just been raised by OSHA.

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