Understanding de minimis violations

Should you be concerned if you or your employer was issued a de minimis violation? And what if you were told you should behave rather than shall behave? What are the consequences of that choice? Well, if it involves the U.S. OSHA standards/regulations, it would be beneficial to know the answers.

Since regulations can easily develop into a complex set of rules that, in the case of the OSHA regulations, are mandatory, here are a few of the lesser-known facts about the regulations that dictate the minimum standard of safety for the scaffolding industry.

A violation means that you broke the law, and the violation will be classified as serious if an employee could get injured or killed because you broke the law. That would not be a good thing. On the other hand, a less than serious violation isn’t as bad, but it means you still broke the law. Consequently, you should have toed the line and complied with the regulations. Or is it that you shall have complied with the regulations? In OSHA language, shall means mandatory, you must do it. On the other hand, should means recommended, it’s a good idea. It appears that you shall comply with the mandatory regulations because they are, well, mandatory.

(Photo: Adobe Stock - fottoo)

Interpretations

What about standards and regulations? Is there a difference? OSHA calls its regulations standards, but they are actually regulations because they are legally binding and enforceable through fines and imprisonment. Standards, on the other hand, are voluntary and describe industry custom and practice. The American National Standards Institute, ANSI, standards are an example.

Did you know that there are vertical and horizontal regulations? Although you may think one applies when you are standing on the job and the other applies when you are laying down on the job, they apply whether you are vertical or horizontal and have nothing to do with stature or posture. The terms refer to the order of applicability. Rather than vertical and horizontal, better terms would be general regulations and specific regulations. In the OSHA Construction Industry regulations, Subpart C defines the hierarchy of application. If there is a specific regulation addressing a hazard, it takes precedence over a general regulation addressing the same hazard.

For example, there is a regulation that specifies the maximum height of the first step, 19 inches, on a stairway used in construction. There is also a regulation that specifies the maximum height, 24 inches, for a stairway that is used to access scaffolds. If your stairway accesses a scaffold platform, the 24-inch regulation applies. The specific regulation takes precedence over the general regulations.

Speaking of generals, are you familiar with the General Duty Clause? The General Duty Clause applies to employers and employees and is a part of the OSHA Act of 1970. The clause requires employers to provide a safe workplace for employees and to comply with the OSHA regulations – all of them.

The clause also requires employees to comply with the OSHA regulations – all of them. Did you know that OSHA uses the General Duty Clause when there is no specific regulation addressing a hazard? If you decide you should hang upside down from a suspended scaffold outrigger beam, 100 feet in the air, know that while there is no regulation prohibiting this practice, the General Duty Clause will do just fine when you get cited – for a serious violation.

While it would be nice if all regulations were perfect, and the writers of regulations try their best to make them perfect, perfection is not always achieved in the writing process, resulting in questions regarding the application of the regulations. OSHA uses Letter of Interpretation to express the agency’s opinion regarding the meaning or applicability of a specific regulation or maybe a set of regulations.

OSHA’s interpretation doesn’t change a regulation but hopefully provides clarity for employers and employees. If you don’t like OSHA’s interpretation, you can disagree and if disagreement doesn’t turn to agreement, you can take your case to an Administrative Court judge for a decision. Sometimes you’ll win, sometimes not.

Many construction sites have more than one employer on them. While safety should be the responsibility of all workers and employers, some employers love to delegate safety to other employers. (Photo: Adobe Stock - lookslikephoto.com)

Defining de minimis

Many construction sites have more than one employer on them. While safety should be the responsibility of all workers and employers, some employers love to delegate safety to other employers. Safety cannot be delegated but a general contractor can ask, and rely on, subcontractors to assist in the promotion of safety on the jobsite. To facilitate whether employers are fulfilling their obligations in such situations, OSHA has developed the Multi-Employer Citation Policy. The policy has established four employer categories, Controlling Employer, Creating Employer, Exposing Employer, and Correcting Employer. Any employer can be in one of these categories, multiple categories, or none of the categories. Citations are issued based on the application of the Multi-Employer Citation Policy.

To confuse everybody, there are State Plans. These plans may cover both private and public sector employment or may be limited to public sector employment only.

Most states incorporate the federal OSHA regulations but there are a few that have tweaked the federal regulations for reasons known only to them. One state, California, has its own original regulations that have little comparison to the federal regulations.

That brings us back to the beginning of this article and de minimis violations. Sometimes an employer, or an employee, has done something to eliminate a hazard but it is not in strict compliance with an applicable regulation. OSHA considers those situations as de minimis situations. OSHA describes de minimis conditions as those conditions “where an employer has implemented a measure different from one specified in a standard (regulation), that has no direct or immediate relationship to safety or health.” For example, an employee installs a ladder on a scaffold but instead of the first rung being 24 inches, measured to the top of the rung, it is 24 inches measured to the centerline of the rung. This would be a de minimis violation in that while it may violate the letter of the law, it does not violate the intent of the regulation which is to control the height of the first step.

Knowledge is a powerful thing. The information provided here can be found in various locations on the OSHA website, www.osha.gov. The Multi-Employer Citation Policy can be found in the category named directives, and its number is CPL 2-0.124. Information about de minimis violations can be found in the Field Operations Manual while the vertical and horizontal information is in 29 CFR 1926 – Subpart C, §1926.20(d)(1) and (2). Do an internet search for the OSHA General Duty Clause and the information will magically appear on your screen. Perhaps the obscurities will no longer be obscure.sa