Courts have held that for OSHA to prove a violation of a general, or performance, standard, OSHA must show that the employer failed to follow industry custom or practice, or that the employer had actual knowledge that the conduct or condition was a violation of the standard. Such “notice” to the employer of what the general standard requires the employer to do is required by constitutional Due Process.
A recent decision by the Court of Appeals for the 11th Circuit not only reaffirmed this earlier line of case law, but also clarified what is meant by “actual knowledge of the violation.”
C & W Facility Services (11th Cir. 1/13/2022), involved a citation issued for a violation of OSHA’s PPE requirement, 1910.132 (a). The language of the PPE standard requires that employers must provide protective equipment “wherever it is necessary by reason of hazards.”
C & W was cited after an employee who was pressure washing a boat dock fell into the water and drowned. The employee was not wearing any type of personal flotation device, which OSHA said was required by the PPE standard.
The Secretary agreed that there was no industry custom that required use of personal flotation devices while pressure washing docks. The question was what is required to show “actual knowledge of the violation.” The Commission decision (an unreviewed ALJ decision) held that the Secretary only had to show that the employer “was aware of the conditions that made the boat dock hazardous.” The ALJ cited and relied on a 2018 decision by the 10th Circuit Court of Appeals, Jake’s Fireworks v. Acosta, which held that the Secretary need only show that the employer knew of the physical conditions present. The Secretary did not need to show the employer knew that those conditions made the work so hazardous that PPE was required by the standard.
The Court of Appeals said that was not the correct test in the 11th Circuit. Instead, the Court said, the Secretary had to show evidence of the employer’s “specific, confirmed knowledge … regarding a hazard warranting a PPE requirement.” Actual knowledge “requires both actual knowledge of the hazard and actual knowledge that the hazard requires the provision and use of personal protective equipment.”
The Secretary argued that the employer’s actual knowledge in this case was shown by (1) a supervisor asking the employee about his ability to swim, and (2) evidence that two other employees who had previously power-washed the boat dock voluntarily wore personal flotation devices while performing the task. However, the Court said, neither of those was specific evidence that the employer knew that a personal flotation device was required by the standard.
