A company didn’t deny that it had violated OSHA regulations. Rather it said OSHA’s repeat violation classification was wrong. Now the agency has lost its argument before a federal appeals court.

In 2002, OSHA issued citations to Loretto-Oswego Residential Health Care Facility. Loretto-Oswego reached an agreement with OSHA settling all matters except one: whether several violations were repeat ones.

At the time of the citations, Loretto Management Corporation (LMC) oversaw a number of nonprofits that operated nursing homes in upstate New York. These corporations all used the Loretto name.

OSHA had previously issued citations to two Loretto facilities, so some of the Loretto-Oswego citations were categorized as repeat.

Loretto-Oswego appealed.

An administrative law judge (ALJ) upheld the repeat status, finding:

• even though the facilities were separate, they shared similar potential hazards
• LMC and Loretto-Oswego had interrelated and integrated operations, and
• a safety manager had oversight of safety at multiple locations.

OSHA took the case to the Occupational Safety and Health Review Commission (OSHRC), which reversed the ALJ’s ruling. The OSHRC noted LMC and its affiliates shared the same president, CEO and CFO, but LMC rarely intervened in Loretto-Oswego operations or dictated policy. The commission said the link between the two was “particularly weak” when it came to safety matters.

This time OSHA appealed to a U.S. circuit court.

OSHA argued LMC oversaw Loretto-Oswego and the two locations that had received previous fines, therefore they functioned as a single employer.

However, the circuit court noted that although LMC had the power to exercise control over Loretto-Oswego, it concluded that it did not. Loretto-Oswego personnel were primarily responsible for safety matters at their own facility.

At the time of the inspection, LMC dictated only one aspect of Loretto-Oswego’s safety policy — its bloodborne pathogen procedures. The facility maintained its own safety committee empowered to make its own safety policy.

The record provides few examples of instances in which LMC directed policy at Loretto-Oswego on matters other than safety.

The circuit court upheld the OSHRC’s finding that the violations should not be categorized as repeat. The fines which had been $56,250 would be only $11,250.

What does this mean for other companies with multiple locations?

OSHA may have difficulty making a repeat categorization stick if local personnel, not corporate employees, are primarily responsible for safety matters at the facility. In particular, absence of a corporate safety policy is key.

What do you think about the court’s decision? Let us know in the comments below.

(Solis v. Loretto Oswego Residential Health Care Facility, U.S. 2nd Circuit, No. 11-888-ag, 8/13/12)

Tags: bloodborne pathogens, health care facility, Occupational Safety and Health Review Commission, repeat violation