The federal Occupational Safety and Health Administration is known for taking broad and aggressive interpretations of its safety regulations. Conduct that may not appear to be covered under a rule can become the basis for a citation if OSHA believes it generally covers the work practice in question. Last month in a 2-1 decision, the Eighth Circuit Court of Appeals sided with OSHA, granting the agency the discretion to change its interpretation of its rules over time in reaction to a changing safety environment.
 
Perez v. Loren Cook Co. involved a citation against a manufacturing company following an employee fatality. The employee was using a small lathe when the metal piece held by the lathe became dislodged and struck him on the head. OSHA cited the employer for failing to have a guard in place to prevent this type of accident. The employer appealed the citation, claiming that the regulation used by OSHA as the basis for the citation required guards in the event of hazards from ejected debris, but not to prevent dislodged equipment from striking the operator. A federal ALJ agreed, vacating the citation.
 
The Eighth Circuit disagreed, reversing the ALJ and reinstating the citation. The majority cited the U.S. Supreme Court’s Martin decision as authority for the proposition that OSHA has broad discretion to interpret its safety rules. The plaintiff pointed out that Martin requires OSHA to be reasonably consistent in its interpretation of its rules, and noted that the agency had taken various positions with regard to the applicability of the guarding rules to dislodged equipment. However, the Eighth Circuit concluded that as OSHA has more enforcement experience over time, its interpretations of its safety rules can change in reaction to developing safety needs.
 
The dissenting judge noted that even under Martin, OSHA’s interpretation was strained and unnecessary. When faced with a questionable OSHA citation, employers cannot simply rely on a plain language reading of the cited safety rules that appears to exclude the factual circumstances permitted. In appropriate cases, federal courts will back OSHA’s attempts to expand its rules beyond their apparent limitations without requiring a rule making procedure.