By: Thomas H. Welby Published: February 2010

Safety Policy: OSHA's Misuse of "Failure to Train" as an Alternative to the General Duty Clause

OSHA § 1926.21(b)(2) requires employers to “instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.”  A few months back, I noted a marked increase in “failure to train” citations under this regulation.

OSHA has always had built-in tension between its aspiration to provide a safe workplace for every worker in America versus the practical impossibility of achieving zero workplace injuries (not to mention political and economic constraints on burdening employers).

OSHA’S basic regulatory framework has traditionally consisted of a host of specific requirements, plus § 5(a)(1) a/k/a the “General Duty Clause.”  Although certainly wide-ranging, OSHA’s specific standards cannot address every situation.  Accordingly, the principal “gaps” (but not every conceivable hazard) are intended to be filled in by the General Duty Clause, which requires each employer to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

The General Duty Clause is itself an embodiment of the tension found throughout OSHA.  It purports to be expansive, on the one hand, as it imposes obligations on employers beyond those in OSHA’s myriad specific requirements.  Pressing in the opposite direction, however, are limits on its scope.  Although sometimes described as a “catchall” provision, it wasn’t truly designed to be that.  The General Duty Clause doesn’t say that the detection by an OSHA compliance officer of a hazard, not covered in any specific standard, equals a violation.

As applied in the cases, establishing a violation of the General Duty Clause requires proof of four elements:  (1) an actual hazard that the employer failed to prevent or remove; (2) that the hazard in question pose a threat of serious injury or death; (3) that the hazard be “recognized” (essentially, that it be actually known to the employer, generally recognized in the employer’s industry, or patently obvious) and (4) that there be shown a feasible and useful means to correct the hazard.

OSHA’s increasing resort to “failure to train” bespeaks, I suspect, not so much an enhanced appreciation of the blessings of training, as a creative use of the regulation to fashion an equivalent to the General Duty Clause, minus the inconvenience of having to prove elements (2), (3) and (4).  “Failure to train” has become something closely approaching a true catchall, imposing liability wherever there is a hazard to which employees were exposed, which the employer could have identified with the exercise of “reasonable diligence.”

For example, in Lane Construction Corp. (2009) the administrative law judge upheld a citation for “failure to train.” In that case, the employer was performing a nighttime milling and paving operation on a rural stretch of U.S. 98 in Florida.  A crew was assigned to close the northbound lane of the two-lane highway.  Employee Felipe Felix-Espinaldo took, from a flatbed truck parked on the southbound shoulder, a “Maintenance of Traffic” sign 6’6” tall and weighing 20 to 30 lbs.  As Felix-Espinaldo entered the unlit northbound lane, at night and on foot, carrying the unwieldy sign and headed for the northbound shoulder, he was struck by a car and fatally injured.

OSHA cited Lane for failing to train its employees in “the proper method of carrying road signs across active roadways to prevent visual obstruction of on-coming vehicles.”1 In affirming this citation, the ALJ rejected the employer’s arguments (1) that the “failure to train” standard was inapplicable because there is no standard regulating the proper way to carry road signs; and (2) the necessity to look both ways before walking into an active lane of traffic is “not something that an adult in the working world should have to be told.”  The Secretary, the ALJ ruled, may properly cite the “failure to train” standard even in the absence of a specific standard addressing the underlying condition.2   The obviousness of the danger, she held, does not negate the need to provide employees with adequate safety guidance.

The ALJ in Lane relied upon a prior case decided by the U.S. Court of Appeals for the Sixth Circuit, W. G. Fairfield Co. (2002).  In Fairfield, the court upheld a “failure to train” citation, where a worker perished while trying to cross six lanes of traffic on foot on Interstate 71 in Ohio.  In part because I have considerable difficulty with Fairfield on its own merits, I have a problem with Lane insofar as the latter relies on it.

Supposedly (or so the Court of Appeals in Fairfield held) “in determining the adequacy of an employer’s instructions under OSHA, the primary inquiry is whether the employer’s program of safety instruction provided adequate guidance.”  If correcting or avoiding the hazard be the purpose to which instruction must be “adequate,” and no specific OSHA standard applies, I think it is neither fair to the employer, nor precedent beneficial to employers and courts in future cases, to uphold a “failure to train” while providing no guidance, or minimal guidance, as to what instructions would be adequate (and useful) in the circumstances.

Confusingly, all of the ALJ, the OSH Review Commission, and the Court of Appeals upheld in Fairfield the “failure to train” citation, while disagreeing as to the permissibility of ever trying to cross a six-lane interstate on foot, and avoiding all but a single, not-very-useful hint as to just what employees ought to be told.

The ALJ agreed with both the OSHA compliance officer and a sheriff’s deputy who testified as an expert witness that “no reasonable person” could have ventured to cross, on foot, six lanes of interstate highway with traffic traveling between 55 and 70 MPH.  The OSH Commission disagreed, however, that an outright ban was indicated, but upheld the citation, finding that the hazard was obvious, and gave rise to a duty on the employer to instruct employees, especially as at least one “potentially safer alternative” (traversing the interstate in a vehicle) was known to it.

Notwithstanding that the ALJ, the compliance officer, and the sheriff’s deputy had (no doubt unintentionally) provided considerable support for this position, the Court of Appeals rejected the employer’s argument that the undeniably obvious hazard of walking into six lanes of high-speed interstate traffic was too obvious to require safety instructions.  While finding that the employer’s sin was that it allowed its employees to exercise “unfettered discretion on when to cross on foot” and in failing to offer “adequate guidance about how and when to do so,” the Court itself completely failed to provide illumination as to the necessary content of such “adequate guidance,” except to note that using a vehicle might sometimes avoid the hazard.3  Had the factual scenario in Fairfield been analyzed under the General Duty Clause, I doubt that a court could have upheld a citation without a fuller, and therefore more instructive, discussion of the practicalities of avoiding or correcting the hazard.
Fairfield would seem to be dubious precedent to support Lane, most obviously as six lanes of heavily-trafficked interstate pose different safety considerations than a two-lane, rural highway.

Lane impresses me as unwise, also, for its emphasis on the manner of carrying the road sign, a matter of secondary importance.  In the absence of prominent warning signals (and reduced speed restrictions) even with only two lanes to traverse, and visibility not further limited by poor weather or curves in the roadway, I think it is always an unacceptable risk to permit anyone to venture on foot into an unlit, active traffic lane at night, while bearing any large, heavy, or unwieldy object.  And, if there are instances in which it is reasonable to require employers to warn against risks that would be very obvious to many, Lane I think surpasses the limits. Walking into an unclosed, high-speed traffic lane, even in bright sunshine, with a large, clumsy object even capable of being carried so as to obstruct one’s view, is not something a grownup in the working world should have to be told not to do.

Finally, there is a touch of perversity in OSHA expanding its use of “failure to train” as a basis for citations, in the measure that, by purposefully skirting use of the General Duty Clause, its citations result in lessguidance (which is all the more significant given the non-existence of specific standards to refer to).  In addition to being unfair to employers, such corner-cutting disserves the cause of protecting workers from injury and death.

1 While it is not an essential element of the violation, it is interesting to note that the ALJ decision in Lanenowhere mentions that Felix-Espinaldo had been observed carrying the MOT sign in a manner that obstructed his view on the occasion that led to his demise, or at any time.

2 I think this rule, while established in the cases, is one of dubious wisdom, and an invitation to abuse.

3 That suggestion is of very little practical use, where roadside work is carried out next to multilane, limited-access highways having center medians.  Such highways seldom have intersecting roads with traffic signals nearby, as would permit safe transit from one side to the other.

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