The U.S. Court of Appeals for the Second Circuit ruled Feb. 14, 2018, in Triumph Construction Corp. v. Secretary of Labor that OSHA is not bound by the lookback period stipulated in its Field Operations Manual for establishing whether a safety infraction is a repeat violation.

On Feb. 13, 2015, OSHA cited Triumph for violating an excavation standard and assessed a $25,000 penalty when an employee was injured in a cave-in at lower Manhattan excavation site.

OSHA deemed it a repeat violation because the company was previously issued citations for violating the same standard in 2009 and 2011. Repeat violations carry stiffer fines than first-time infractions.

Triumph contested the final order of the Occupational Safety and Health Review Commission, which affirmed the OSHA citation, arguing that the OSHA Field Operations Manual dated April 22, 2011, was in effect at the time of the 2015 citation and dictated a three‐year lookback period for assessing repeat violations, not the five‐year period relied on by the commission.

The lookback period was extended from three to five years in the last days of the Obama administration.

'Only a Guide'

In its decision, the court rejected Triumph's appeal, noting that OSHA’s FOM explicitly states that “there are no statutory limitations on the length of time that a prior citation was issued as a basis for a repeated violation” and describes a policy “that shall generally be followed.”

In addition, the court determined the FOM is “only a guide for OSHA personnel to promote efficiency and uniformity, [is] not binding on OSHA or the [Occupational Safety and Health Review] Commission, and [does] not create any substantive rights for employers.”

As a result, employers should consider the possibility that they may face a penalty for a repeat OSHA violation even if the citation for the original violation was issued more than five years prior.