Recent OSHRC Decisions Reinforce the Principle that Unsafe Employee Conduct May Mitigate Against Reasonable Employer Safety Precautions in the Context of OSHA Citations

On September 21, 2020, the Occupational Safety and Health Review Commission (OSHRC) unanimously vacated two machine-guard citations levied against employers by the Occupational Safety and Health Administration (OSHA) and substantially reduced the penalty imposed in a third case, holding that more weight should have been given to unsafe employee behavior. This blog entry provides a brief synopsis of each of these matters and examines the key takeaways.

I. Recent Machine Guarding OSHRC Decisions

In Aerospace Testing Alliance, an employee sustained an amputation injury to his finger after circumventing machine guarding and removing his safety glove while operating a power shear in the employer’s metal shop. The employer was subsequently cited by OSHA under Section 1910.212(a)(1) of OSHA’s machine guarding regulations. The citation noted the employer’s alleged failure to guard the hold-down pistons of the power shear. The citation was overturned after the OSHRC determined that under normal operations the existing machine guarding was OSHA-compliant. The OSHRC also found that the employer could not have reasonably anticipated that the employee would bypass the guard in the manner he did.

In Wayne Farms, an employee sustained injuries after reaching inside a poultry breading machine while it was operating. In order to gain access to the equipment, the employee bypassed the hopper’s machine guarding, including a metal gate. As in the Aerospace Testing Alliance decision, the OSHRC determined that the machine guarding was sufficient during normal operating conditions, and the method by which the employee bypassed the guarding was not reasonably predictable by the employer.

Lastly, in Dover High-Performance Plastic, Inc. a product manufacturer was cited for a “willful” violation for permitting employees to operate lathes and mills with the access doors either open or removed entirely. OSHA classified the citation as willful due to an employee injury in 2012 that arose from the same machinery. On appeal, the OSHRC reclassified the citation after evidence was presented that, subsequent to the 2012 accident, the employer reprogramed the machinery to eliminate an obvious hazard that is deemed the cause of the injury. OSHA maintained that the employer-initiated change was insufficient because it had no material bearing on the way the machines were operated.

On appeal, the OSHRC found that the employer in Dover High-Performance Plastic, Inc. acted in good faith by reprogramming the lathes following the prior 2012 accident and that this mitigated against the most obvious aspect of the hazard – that an employee could become injured by the component of the lathe that begins to move when the assembly cycle automatically starts. As a result, and because the OSHRC also found there had been no violation with respect to the mill equipment, it reduced the original penalty from $49,000 to $3,500.

II.      Key Takeaways

On balance, each of the recent OSHRC decisions reinforces the principle that while an employee’s injury may arise from exposure to a workplace hazard, that fact alone does not necessarily establish that the employer failed to comply with a specific machine guarding standard. As the OSHRC noted in the Aerospace Testing Alliance matter, a machine guard may be compliant even if the operator’s actions are not “reasonably predictable given the machine’s normal operation.” The Dover High-Performance Plastic, Inc. matter, in particular, reflects a heightened standard for OSHA to show a willful violation of safety regulations.  

As these matters demonstrate, the occurrence of an injury does not, without more, establish that machine guarding was noncompliant with OSHA regulations, especially where an employer is otherwise meeting its safety obligations. Although employee conduct can be unpredictable under a given set of facts or conditions, employers should continue to heed OSHA regulations, regularly train employees on machine operation and guarding.  Employers are also encouraged to carefully study and document their responses to workplace accidents (and to employee safety complaints), including demonstrating the adequacy of the steps taken to address the safety concerns presented, and why they believe those steps are adequate. 

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