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SAFETY TIPS

U. S. Department of Labor’s OSHA Penalty Increases

In order to leverage resources to ensure the goals of the OSHA act are met, OSHA’s mission is becoming not so much to punish or react, but to require employers to plan, prevent and protect.  The recently released Spring regulatory agenda includes a new enforcement strategy to Plan/Prevent/Protect.  This effort is designed to expand and strengthen worker protections through a new OSHA standard that would require each employer to implement an Injury and Illness Prevention Program tailored to the actual hazards in that employer’s workplace.

Instead of waiting for an OSHA inspection or a workplace accident to address workplace hazards, employers would be required to create a plan for identifying and remediating hazards, and then implement this plan.  Through this common sense rule, OSHA is asking employers to find the safety and health hazards present in their facilities that might injure or kill workers and then fix those hazards, also known as “Find and Fix”.  Workers would participate in developing and implementing such a plan and evaluating its effectiveness in achieving compliance.  OSHA will soon initiate rulemaking on this standard with stakeholder meetings, the first to take place in June in New Jersey.

OSHA will also be implementing a new Severe Violators Enforcement Program, increasing focus on repeatedly recalcitrant employers.  The Administration supports the Protecting America’s Workers Act (PAWA), which makes meaningful and statutory changes to OSHA’s penalty structure and enforcement program.  PAWA, coupled with the Plan/Prevent/Protect regulatory agenda, will begin to make the “catch me if you can” approach to workplace safety a thing of the past.

PAWA expands the OSH Act’s anti-retaliation provisions.  The bill codifies a worker’s right to refuse to perform unsafe work, protects employees who refuse work because they fear harm to other workers, prohibits employer policies that discourage workers from reporting illnesses or injuries, prohibits employer retaliation against employees for reporting injuries or illnesses, and grants workers the right to further pursue their case if OSHA does not proceed in a timely fashion.

The general consensus of PAWA is that the Agency’s penalties are too low to have an adequate deterrent effect.  Several administrative changes to the penalty calculation system are being made, which will become effective in the next several months.

If an OSHA inspection finds violations and results in penalties, the time frame for considering an employer’s history of violations will expand from three years to five years.  An employer who has been inspected by OSHA within the previous five years and has no serious, willful, repeat, or failure-to-abate violations will receive a 10% reduction for history.

An employer that has been cited by OSHA for any high gravity serious, willful, repeat, or failure-to-abate violation within the previous five years will receive a 10% increase in their penalty, up to the statutory maximum.  Employers who have not been inspected and employers who have received citations for serious violation that were not high gravity will receive neither a reduction nor an increase for history.  The time period for repeated violations will also be increased from three to five years.

Area Directors will be authorized to offer up to a 30% penalty reduction to employers at an informal conference; any reduction over 30% will have to be approved by the Regional Administrator.  Area Directors will also be authorized to offer an employer with 250 or fewer employees an additional 20% reduction if that employer agrees to retain an outside safety and health consultant. 

OSHA will be adopting a gravity-based penalty determination that provides for an additional penalty of between $3,000 and $7,000, depending on severity and probability.

The current good faith procedures will be retained.  A penalty reduction is permitted in recognition of an employer’s effort to implement an effective workplace safety and health management system.  Employers must have a safety and health program in place to get any good faith reduction; furthermore, good faith reductions are not allowed in the cases of high gravity situations, willful, repeat, or failure-to-abate violations.  The 15% Quick-Fix reduction, which is currently allowed as an abatement incentive program meant to encourage employers to immediately abate hazards found during an inspection, will also be retained.  However, the 10% reduction for employers with a strategic partnership agreement will be eliminated. 

The minimum proposed penalty for a serious violation will be increased to $500.  The current maximum penalty for a serious violation, one capable of causing death or serious physical harm, is only $7,000 and the maximum penalty for a willful violation is $70,000.  The average penalty for a serious violation will increase from about $1,000 to an average $3,000 to $4,000.  Monetary penalties for violations of the OSH Act have been increased only once in 40 years despite inflation.  The PAWA would raise these penalties, for the first time since 1990, to $12,000 and $250,000 respectively.  Future penalty increases would also be tied to inflation.  For more information on the penalty policy, visit http://www.osha.gov/dep/penalty-change-memo.pdf.

References

Testimony of Jordan Barab, Deputy Asst. Secretary for OSH, U. S. Dept. of Labor before the Subcommittee on Workforce Protections, The Committee on Education and Labor, U. S. House of Representatives, April 28, 2010

OSHA News Release #10-538-NAT, April 22, 2010

Testimony of David Michaels, Asst. Secretary for OSH, U. S. Dept. of Labor before The Committee on Health, Education, Labor and Pensions, U. S. Senate, April 27, 2010

 

Submitted by
Sharon Roman
Regulatory Compliance Consultants, Inc.
OSHA Outreach Instructor
American Heart Association Instructor Trainer

 

For more information or questions concerning this article, contact our office at 419-882-9224.

 

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