Takeaway: This decision calls into question prior federal case law holding that a specific safety standard of the Occupational Safety and Health Administration (OSHA) does not necessarily pre-empt the clause of the Occupational Safety and Health Act that imposes a general duty of safety on all employers. Splits in appellate court decisions sometimes wind up being resolved by the U.S. Supreme Court.
The 11th U.S. Circuit Court of Appeals ruled that a certain type of forklift accident was not a general-duty safety violation because the employer, Chewy Inc., complied with the Occupational Safety and Health Administration’s (OSHA’s) specific forklift safety regulation.
The secretary of the Department of Labor (DOL) cited Chewy after two of its warehouse workers suffered “under-ride accidents” within a six-month period. An under-ride accident can occur when the rear part of a forklift is short enough that it can pass under warehouse shelves without colliding with them. If the forklift can pass under the shelving, the shelving can hit or crush the operator, as happened to the Chewy workers. One under-ride accident occurred in July 2018 and resulted in injuries. The other occurred in December 2018, and the employee was killed.
Before the accidents, Chewy had two measures in place to prevent under-rides. First, the company trained its forklift operators to look in the direction of travel, maintain full control of the forklift and operate at safe speeds. Second, Chewy maintained warehouse aisles significantly wider than the minimum safe width for its forklifts. But Chewy did not implement a third strategy, modifying the shelving or forklift to ensure that the forklift hits a shelf before it can pass under that shelf, until after the fatal accident in December 2018.
The secretary delivered a citation and notification of penalty to Chewy in May 2019 after the DOL’s investigation of the 2018 accidents. The secretary found that Chewy violated its statutory general duty to provide a safe workplace because it had not adopted the third strategy, which the secretary found feasible and helpful, before the accidents. Chewy contested the citation before an administrative law judge (ALJ) on the grounds that an existing DOL safety standard for forklift operation addressed under-ride accidents and pre-empted any statutory general duty regarding under-rides.
The ALJ upheld the citation. She concluded that because the promulgated forklift operation standard did not prevent all under-rides, Chewy was not excused from its general duty to protect workers from them. She ruled that Chewy failed to fulfill its general duty because under-ride accidents are a known hazard in the industry and Chewy declined to adopt feasible preventive measures.
The Occupational Safety and Health Review Commission denied review, so the ALJ’s decision became a final order. Chewy petitioned for review of the ruling to the 11th Circuit. The appeals court noted that it would only set aside the commission’s order if it was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.
The 11th Circuit held that Chewy could not be liable under the general-duty clause because it complied with a specific safety standard that already addressed the under-ride hazard. Under DOL regulations, an employer who complies with any specific safety standard should be deemed to be in compliance with the general-duty clause to the extent of the condition, practice, means, method, operation or process covered by the standard.
The court ruled that the secretary promulgated a standard that addressed safe forklift operation, Section 1910.178. The regulation requires that forklift operators receive safety training, including being trained to look in the direction of and keep a clear view of the path of travel and to maintain the vehicle at a safe speed. The secretary did not claim that Chewy violated that standard. If OSHA wants to mandate additional under-ride safety requirements, it must first promulgate a new regulation through established procedures.
Moreover, at the ALJ hearing, the secretary’s expert witness testified that proper training under the standard would address the under-ride hazard. Another of the secretary’s witnesses testified that the standard specifically addresses the hazard of a forklift operator striking a storage rack, which happens during an under-ride.
The 11th Circuit’s decision potentially conflicts with a prior decision of the D.C. Circuit, which found that a safety standard that does not specifically address all potential dangers of a situation does not pre-empt the general-duty clause. Nevertheless, the 11th Circuit granted the petition, set aside the decision and vacated the citation.
Chewy Inc. v. U.S. Department of Labor, 11th Cir., No. 22-11626 (May 30, 2023).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.