b'Gary\'s Corner Recent Court Decision May Change Ground Rules Gary Auman, MRCA Legal Counsel L December, the Eleventh Circuit Court ofv.issued aSafetyIn this case, Compass argued that it had no reason to anticipate that astAppealsdecision in the case of Compass Environmental, Inc.Occupationalthe deceased employee would have had access to the hazard based on the andReview Commisswn (OSHRC); DepartmentLabor, Casepractices adopted by the employee who operated the equipment involved Healthof No. 10-9541 (Compass) thatthe test used by OSHA toin the accident. Therefore, under the four-part test established in the significantly changes determine whether antrained his or her employ Atlantic Battery Co. case, 29 DFR 1026.21 (b) (2) was not applicable. employer has adequately ees on hazards to which they are potentially exposed. The Eleventh CircuitIfstandardnot applicable, the employer could not have failed thewas Court of Appeals hears appeals from lower federal courts in the states of Al tocomply with itcould it be said that the employer had actual or nor abama, Georgia, and Florida.constructive knowledge of the violation. The training by Compass thatreported in the Court\'s decisionItto me that even aof "prudence" requires waswould seemdefinition focused on hazard recognition training, whichisrequired in 29 CFRthat the partyprudence is being judged be aware of aThis is whoserisk. 1926.21(b)(2). Since 1994, OSHA has applied ate.st set forth inconfirmed in the definition ofas found in four-partprudent/prudenceMerriman Secretary v. AtlanticCo., 16 BNA OSHC 2131, 2138 (1994). TheWebstei sDictionary, led. The Eleventh Circuit Court BatteryCollegiate0th test required that, to establish aof an occupational safety orseems to be stretching the definition beyondthe employer is violationwhether health standard, the Secretary of Labor had to prove: (a) the applicabil aware of ato establish awhich includes whether the employer hazardtest with ity of the cited standard, (b) the employer\'s noncompliancetheor its industry has recognized the hazard. This broader definition is not standard\'s terms, (c) the fact that an employee had access to the violativefound in Websters. conditioru;, and (d) the employer\'s actual or constructive knowledgeWith OSHA, Appellate Court decisions typically apply only to those of the violation. Actual orknowledge has been defined asemployers working within the jurisdiction of the Appellate Court. In this constructive whether the employer knew or "with the exercise of reasonable diligencecase, the applicability of the decision could be limited to Florida, Georgia, could have known" of the violative conditions.and Alabama. However, this "rule of thumb" does not restrict OSHA\'s In the Compass case, the Eleventh Circuit Court ofaffirmed aapplication of the decision. All employers in the coru;truction industry Appeals decision by the OSHRC andfour-part test. The court affirmedneed to be aware of this decision and to prepare themselves for a eliminated thebroad "prudentwords, the adoption of aemployer" test. In otherthe Reviewapplication of this decision in all states under federal OSHA jurisdiction. Commission concluded that in thefactsof the case before it, aThose who wish to minimize the likelihood of being citedfailing to reasonablyfor prudent employeranticipated the employee\'s exposure to theproperly train their employees as required by 29 C.F.R. 1926.21(b)(2) would have hazard andhimtraining addressing the hazard. In its discus need to consider the following steps: providedwith sion in the body of its decision, the Eleventh Circuit stated that the generic1. Have an effective safety program. test set out in Secretary v. AtlanticCo., supra.(1994), although2. Establish aand stick to it to perform a j analysis Batteryprocedureob safety appropriate for many types of OSHAisill-fittedin determining(JSA) onaspects of every job you perform. violations,all whether the training standard requirements found in 29 C.ER. 1926.213. Be sure that you train all employees on the job siteare identified (b)who (2) had been violated. The courtthatemployer\'s obligation toon youras having any potential exposure to the hazards identified stated"anJSA train is accordingly \'dependent upon the specific conditions [at the workbytheJSA site], whether those conditions create aand whether the employer4. Be sure that all training received by employees is both effective and hazard, or its industry has recognized the hazards."\' You should recognize that theappropriate for the hazards to which they may be exposed. prudent employer test, set out by the Eleventh Circuit Court, mirrors very5.AsI have stated on many occasions, and as is required under 29 C.F.R. safety closely the general duty clause found in Section S(a) (1) of the Occupational1926.20(b) (2), have regular and frequentiru;pections perSafety and HealthThe general dutyrequires that an employerformed on the entire job site as well as all materials and equipment Act.clause must provide aof employment free ofhazards that areon the job site by qualified, competent persons. placerecognized likelyrecognized causing orto cause,.death or serious physical hann. A6. Document all jobsite inspections. hazarddefined as arecognized by the employer or its industry:7. Have an effective and uniformly enforced safety disciplinary program ishazard Following OSHA\'s investigation of the fatality, Compass was cited forto ensure that safety training is implemented during the job. violation two serious violations. One item alleged aof 1926.21(b)(2), a- - standard for which !Dore and more employers in the construction indus Auman stresses that this decisionisreaching andhave a jarcanse11ou.s try are being cited. This standard states "the employer shall instruct eachimpacJ on all members ofMRCA. For questions on theof thesmpethis employee in the recognition and avoidance of unsafe conditions and thedecision,please mntactAuman ator through MRCA 937.223.6003 regulations applicable to his workto control or eliminateLaw to discuss how this recentmayyour company. environmentdecisionajfecJ any hazards or other exposure to illness or injury." Midwest Roofer- www.mrca.org5'