United States: OSHRC Vacates OSHA Traffic Injury Citations Against JH Traffic Control

Did you know that an employer must inform the Occupational Safety and Health Administration ("OSHA") within 24 hours after certain types of work-related injuries to an employee? In a recent ruling, Sec'y of Labor v. JH Traffic Control Co., LLC, an administrative law judge of the U.S. Occupational Safety and Health Review Commission ("OSHRC") upheld a $2,000 penalty against an employer for failing to notify OSHA of an accident involving one of its employees. On the evening of September 22, 2015, an employee of Boise, Idaho-based JH Traffic Control Co., LLC was seriously injured and hospitalized after being struck by a vehicle while placing traffic control barrels on a busy road in advance of a construction project. JH Traffic Control did not notify OSHA of the employee's hospitalization. This oversight violated OSHA's revised injury and illness reporting rule, which went into effect in January 2015. The amended rule requires employers to inform the agency "[w]ithin twenty-four hours after the in-patient hospitalization of one or more employees or an employee's amputation or an employee's loss of an eye, as a result of a work-related incident." OSHA learned about the accident from a local newspaper article on September 24, 2015, two days after the date of the accident.

OSHA investigated the accident and issued three serious citations and one other-than-serious citation to JH Traffic Control with proposed penalties of $7,600. After the Company contested the citations, two of the citations were withdrawn. The remaining citations were for violating the General Duty Clause of the OSH Act under 29 U.S.C. § 5(a)(1), and for failing to notify OSHA of the accident under 29 C.F.R. § 1904.39(a)(2), and OSHA reduced the total proposed penalty to $4,800. In addressing the remaining citations, OSHRC focused on 3 key issues: (1) whether the employee was placing the barrels with the flow of oncoming traffic, a recognized safety practice in the traffic control industry which places one or more barrels between oncoming traffic and the worker, or whether the employee was placing the barrels against the flow of traffic, an unsafe practice, (2) whether JH Traffic Control knew or, with the exercise of reasonable diligence, could have known that its employees were engaging in an unsafe practice, and (3) JH Traffic Control's failure to notify OSHA of the employee's inpatient hospitalization resulting from the accident.

The injured worker's coworker, who was the only witness with actual, direct knowledge of the injured worker's actions that evening, testified that his coworker placed the barrels with the flow of traffic. Based on this fact, and his finding that JH Traffic Control was not aware that its employees were crossing live lanes of traffic to retrieve the barrels, the Judge vacated the first citation for violation of the General Duty Clause. The Judge concluded that the employees were placing the barrels utilizing the safe practice they had been trained to use, and although they were exposed to the hazard of being struck by oncoming traffic as they retrieved the barrels, their employer neither had actual nor constructive knowledge of such safety hazard. However, JH Traffic Control accepted the second citation for not reporting the accident within twenty-four hours and the corresponding $2,000 penalty. The ruling in Sec'y of Labor v. JH Traffic Control Co., LLC, demonstrates the importance of reporting within twenty-four hours an in-patient hospitalization, amputation, or loss of an eye to OSHA of one or more employees as a result of a work-related incident. Although not at issue in this case, employers also are reminded that they are required to report to OSHA within eight hours any fatality to one or more employees as a result of a work-related incident.

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