Citations issued by the Occupational Safety and Health Administration or equivalent state agencies can be classified as either “serious” or “non-serious.”  Serious violations carry significantly higher fines, and can affect the terms of commercial contracts for service providers such as general contractors.  In a new case, Sec. of Labor v. Trinity Indus., Inc., the Third Circuit Court of Appeals discusses OSHA’s burden when classifying workplace violations as serious.

The employer purchased a facility that had been represented as being asbestos-free.  After completing renovations that included the removal of insulation, tests revealed that in fact, the material included asbestos.  OSHA cited the employer for failure to test the insulation, and remove it in a manner consistent with safety regulations.  These violations were deemed serious.

Trinity appealed to the OSH Review Commission, contending that the citations were misclassified.  OSHRC agreed, deeming the violation as non-serious because there was no evidence of significant employee exposure to asbestos.  On appeal, the Third Circuit reversed OSHRC, concluding that the citations were properly classified as serious.

Under the OSH Act, the court concluded that actual employee exposure to harm is not the standard for classifying OSHA violations.  Instead, the violation is deemed serious if there is a possibility of an accident or occurrence that could lead to death or serious harm.  The likelihood of such an accident actually occurring does not have to be substantially probable, only possible.  The citation was properly classified because the employer failed to address asbestos exposure, not because any employees were actually exposed in this particular circumstance.

This case shows that the standard for OSHA to uphold a serious classified citation is relatively low.  While citations can often be reclassified during informal negotiations with OSHA, the review process and later litigation are unlikely to result in reclassification of the underlying violation.