Many employers worry about compliance. They want to make sure they do what it takes to keep government agencies like OSHA at bay. However, compliance and safety aren’t the same thing.
For example, a company accused of violating OSHA’s General Duty Clause in a fatal forklift under-ride incident has proven in court that it was actually compliant with a specific forklift standard, leading the court to vacate the citation.
By proving it was compliant with 29 CFR 1910.178, Chewy Inc. was able to get the General Duty Clause violation vacated by the U.S. Court of Appeals for the 11th Circuit.
However, as safety professionals know, compliance with a safety standard is the absolute minimum expected under law. For those employers who want to see their workers go home safe every day, compliance is simply a starting point.
While Chewy’s forklift safety efforts met OSHA’s standards according to the appeals court, the bottom line is that the company experienced one serious under-ride injury and one under-ride fatality leading to the citation.
2 under-ride incidents in 6 months
An under-ride incident occurs when the rear part of a forklift is short enough that it can pass under warehouse shelves without colliding with them. This can lead to the operator being hit or crushed by the shelving.
Chewy was cited after two of its warehouse workers had under-ride incidents within a six-month period. One occurred in July 2018 and involved an employee getting severely injured. The second incident happened in December 2018, resulting in the employee getting killed.
The company had two measures in place to prevent under-ride incidents:
- training forklift operators to look in the direction of travel, maintain full control of the forklift and operate forklifts at safe speeds, and
- making warehouse aisles significantly wider than the minimum safe width for forklifts.
The company could have also modified the shelving or the forklifts in ways to prevent under-ride incidents but it chose not to do so. OSHA cited Chewy for violating the General Duty Clause for failing to modify the shelving or forklifts.
Chewy contested the citation before an Occupational Safety and Health Review Commission (OSHRC) administrative law judge, arguing that an existing OSHA safety standard for forklift operation, 29 CFR 1910.178, addressed under-rides and preempted any statutory general duty regarding that type of hazard.
The judge upheld the citation, finding that since 29 CFR 1910.178 didn’t prevent all under-ride incidents, Chewy wasn’t excused from its general duty to protect workers from them. The OSHRC denied a review of the case, leading Chewy to file an appeal with the U.S. Court of Appeals for the 11th Circuit.
OSHA’s use of General Duty Clause was overreach of authority
The 11th Circuit found that:
- OSHA should have cited Chewy under 29 CFR 1910.178
- Chewy’s efforts to prevent under-ride incidents were in compliance with that standard, and
- OSHA incorrectly used the General Duty Clause in this case.
Because Chewy “complied with the safety standard that specifically addresses under-rides, the Secretary cannot cite Chewy for failing to protect its workers from that hazard,” according to the appeals court.
The appeals court vacated the citation on these grounds. The court said that failing to vacate the citation in this case would have allowed OSHA more authority under the General Duty Clause than it was intended to have and could have upset the regulatory balance.
Compliance is never enough
That’s all well and good for Chewy and for the U.S. government’s regulatory efforts. If Chewy was compliant and wrongly accused of violating a standard, then a citation isn’t warranted. If OSHA overreached its authority, then the agency should be reined in.
However, Chewy’s compliance with an OSHA standard or OSHA’s overreach in attempting to incorrectly use the General Duty Clause is overshadowed by the fact that one employee was severely injured and another killed due to the hazard in question.
Was Chewy in compliance with OSHA standards? According to the 11th Circuit, yes. Did that compliance prevent the injury of one employee and the death of another? No, it did not. That’s because compliance is the bare minimum required by law. It’s a baseline for safety, nothing more.
If Chewy would have modified the shelving or the forklifts to prevent under-ride incidents along with its other efforts, it would have prevented the tragic incidents it was cited for.
The company had already taken the extra effort to widen its aisles to help mitigate the hazard. Chewy had two options it could have chosen to further protect its employees:
- add manufacturer-approved vertical posts to protect the forklift’s operator area, or
- lower the shelving enough to prevent the possibility of an under-ride incident.
Cost and reduced storage space kept the company from committing to either modification even after the first under-ride incident injured a worker. The company continued to insist that its efforts, which were compliant with OSHA’s forklift standard, were enough to keep employees safe. Then tragedy struck a second time, less than six months later, this time resulting in a worker’s death.
Compliance is never enough. Compliance is just the beginning of actually making the workplace safe for employees.