Court Redefines Employee Exposure in OSHA Citation Appeal | Daily Construction News

According to OSHA Law Update, the U.S. Court of Appeals for the Sixth Circuit upheld an OSHA citation that alleged an employer failed to properly barricade the swing radius of a crane (See All Erection & Crane Rental Corp. v. Occupational Safety and Health Review Commission, No. 11-4242 [6th Cir. Dec. 5, 2012]).

The case did not involve an employee being struck by the crane, but it is not unusual for OSHA to issue citations in the absence of an injury.  What makes this case important is the court did not even care whether an employee was ever located in an area where he could have been struck by the crane. Instead, it upheld the violation on the basis that employees may theoretically be present in that zone of danger.

The long-standing test for OSHA to establish a prima facie violation of an OSHA standard includes OSHA proving by a preponderance of the evidence that:

1. The cited standard applies to the cited condition;
2. The requirements of the cited standards were not met by the employer;
3. The employer knew or should have known with the exercise of reasonable diligence about the hazardous condition; and
4. Employees were exposed to the hazardous condition.

When determining whether an employee has access to a hazardous condition, fact-finders have traditionally looked at whether an employee has actually been exposed to a hazard.

In this case, however, the Sixth Circuit ruled that an employee does not actually need to be exposed to a hazard before an employer can be found in violation of an OSHA standard.  Rather, the Sixth Circuit held that the fact that an employee could have been exposed to a hazard is enough to find an employer in violation of an OSHA standard.  

Although this decision appears to be a departure from settled law, if the reasoning is adopted by other Circuits, employers could be opened up to liability for theoretical dangers rather than real-world exposures.