New England Biz Law Update
A federal appeals court has issued a significant decision regarding online pet retailer Chewy, Inc.’s liability under the Occupational Safety and Health Act.
The court ruled that Chewy did not violate federal workplace safety laws by failing to prevent a fatal forklift accident at its Florida facility in 2018.
In a unanimous three-judge ruling, the 11th U.S. Circuit Court of Appeals said that the Occupational Safety and Health Administration (OSHA) could not fine Chewy for failing to maintain a safe workplace under the “general duty” clause, when the company was in compliance with more specific rules regulating forklift safety.
The ruling has broader implications for employers as it narrows OSHA’s ability to cite employers for violating the general duty clause when the employer is compliant with a more specific safety or health standard that addresses the alleged hazard.
General duty clause
As part of the OSH Act, the general duty clause requires employers to maintain a safe workplace free from recognized hazards. When there is no specific OSHA standard addressing a hazard, OSHA can use the “catchall” general duty clause to address a safety issue.
To prove a violation of the general duty clause, OSHA must show that the employer failed to maintain a hazard-free workplace, the hazard was recognized, the hazard was likely to cause death or serious harm, and there was a feasible and economically viable way to correct the hazard.
Under-ride dangers
In this case, the hazard was an “under-ride” incident. An under-ride can occur when the back part of a forklift is low enough to pass under warehouse shelving. In these instances, the forklift operator can be caught between the machine and the shelving. The 2018 fatality at Chewy’s Florida warehouse was the company’s second under-ride incident in a six-month period; the first was not fatal.
OSHA has previously cited employers under the general duty clause for exposing employees to under-ride hazards. In doing so, OSHA required employers to abate the hazard by modifying shelving or forklift fleets.
Existing standard
In the Chewy case, the 11th Circuit found that the training and safety requirements outlined in OSHA’s powered industrial truck (PIT) standard was intended to address the under-ride hazard. The court held that because Chewy complied with the identified standard, the general duty clause citation was improper and vacated it.
The court rejected the Secretary of Labor’s view that compliance with a specific standard must completely eliminate a specific hazard for the general duty clause to be preempted. Effectively, the court said OSHA could not apply the general clause when OSHA itself has legal authority to modify “inadequate” safety standards through a public notice and comment period.
The PIT standard includes training requirements to address forklift safety around fixed equipment. Operators are instructed to look in the direction of travel and operate at safe speeds.
Impact and takeaways
Under this ruling, companies that comply with OSHA standards designed to address specific hazards cannot be cited under the general duty clause for failing to address those same hazards.
Overall, warehouse safety has become a high priority issue for OSHA, with “Emphasis Programs” focused on forklift operations. As such, OSHA may be hyper-vigilant about enforcing the existing PIT standard. And it wouldn’t be surprising if we see amended standards coming to address under-ride hazards. Employers are advised to review their existing training procedures for PIT compliance and keep abreast of any emerging regulations.
