Sixth Circuit Redefines Employee "Exposure" in Appeal of an OSHA Citation

By Margaret C. Thering and Eric J. Conn

The U.S. Court of Appeals for the Sixth Circuit closed out 2012 with a decision that dealt a blow to employers defending against alleged violations of OSHA standards.  Specifically, in a December 5, 2012 decision in a case on appeal from the Occupational Safety and Health Review Commission, the Sixth Circuit upheld an OSHA citation that alleged that 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 All Erection & Crane Rental 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 unusual and potentially so important is that the Court did not even care whether an employee was ever located in an area where he could have been struck by the crane, but upheld the violation simply 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 the All Erection & Crane Rental Corp. 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.  The court explained:

“The Secretary need only prove that employees had access to the violative condition.  The Secretary need not prove that employees were actually exposed to the condition, but only that it was reasonably predictable that employees would be within the zone of danger.  Furthermore, the Secretary need not prove that the violative condition was actually hazardous, since under a standard such as this, the existence of a hazard is presumed.”

This decision appears to be a departure from settled law, and although it ought to be limited to employers within the Sixth Circuit’s reach (i.e., Ohio, Michigan, Kentucky, and Tennessee), if the reasoning is adopted by other Circuits, employers could be opened up to liability for a parade of imagined horribles, as opposed to real world exposures.