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De Minimis Violations & OSHA

 “What you should know”

By: Matt McCreery

December 2015

Definition of DE MINIMIS - lacking significance or importance:  so minor as to merit disregard

On a typical construction site in America you will find a variety of potential hazards that if left un-addressed could lead to injury or illness.  The most basic of all OSHA standards, titled the “General Duty Clause”, states that employers are required to provide their employees with a place of employment that "is free from recognizable hazards that are causing or likely to cause death or serious harm to employees."  This definition plays an important role in job-site safety as a whole and is integral to understanding OSHA’s De Minimis policy. 

OSHA has six specific categories of OSHA violations, each of which carries either a recommended or a mandatory penalty. In this article we will be exploring the least serious class of violation as well as discuss circumstances that may affect your construction projects in the future.  These six categories are as follows:

  • De Minimis Violations
  • Other-than-Serious Violations
  • Serious Violations
  • Willful Violations
  • Repeat Violation
  • Failure to Abate Prior Violation

A De Minimis violation is a technical violation of OSHA rules that have no direct impact on health or safety.  It is the least serious class of violation, and OSHA inspectors typically do not levy fines or issue citations for these types of violations.  Furthermore, The 5th Circuit court has expanded that definition to state that a De Minimis classification is required as a matter of law where 1) no, or only minor injury will result, 2) the possibility of injury is remote, or 3) there is no significant difference between protection provided by the employer and that afforded by technical compliance with the standard. 

How does this affect your construction project and how can you determine if a violation is De Minimis?  With this question things get much more complex.  Remember the General Duty Clause from paragraph 1…. It stated that employers must protect their employees from recognized hazards that were likely to cause serious harm or death.  Let us examine one of the more typical scenarios in construction that relates to both the General Duty Clause and OSHA’s De Minimis policy, window openings.  OSHA’s fall protection standard states that if a fall potential of 6 feet or greater exists and if a guardrail is installed to mitigate this hazard that the minimum height for this system must be 39” in height.  Contrary to OSHA’s stance the International Building Code “IBC” requires the bottom of openings created by operable windows to be a minimum height above the adjacent interior floor of at least 36 inches.  So while construction contractors are to meet OSHA regulations of 39 inches they must also complete their work per the architects drawling’s which more often than not follow the IBC’s guidelines of 36 inches. 

There is no clear guidance or data that would support the argument that this 3 inch difference would make the window more or less safe, and therefore this item may be classified as De Minimis and often times will be by an OSHA Compliance Officer.  There are many variables that could shift the argument in the other direction.  These variables could include housekeeping in and around the window in question, or the specific work activities ongoing in the area.  If there is excessive debris, material or tools underneath or near the window than it would be reasonable to assume that the hazard level has increased and the likelihood for serious physical harm or death would increase.  This would certainly warrant a need for additional systems to increase the height to 39 inches or higher.  Or, if the specific work activity involved the worker standing with his or her back near the window opening this again would warrant additional fall protection. 

De Minimis arguments have been made by contractors with varied success and only those situations in which the possibility of injury is unlikely, only minor injury would occur or that the difference between the OSHA standard and what was found to be in place provided similar protection were successful in a court of law.  Often times, if protective systems or controls are feasible, contractors should strive to meet OSHA compliance guidelines.  However, it is good to know about De Minimis violations and it may affect how you view your next OSHA inspection.

 

 


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