OSHA Retools for the 21st Century

HR & Safety

Businesses should expect stepped-up enforcement, stiffer penalties

By Joseph A. Wellington, Esq.

The U.S. Department of Labor continues to “retool” its Occupational Safety & Health Administration (OSHA) for the 21st century through increased inspections, new regulatory requirements, added protection against ergonomic hazards, and administrative formulas that impose stiffer penalties on employers.

Businesses should anticipate that OSHA will continue to aggressively enforce existing workplace health and safety requirements, create new requirements, and impose penalties as large as the marketplace can bear.

The agency has publicized numerous multimillion-dollar fines it has imposed on large employers over the past 18 months, and its most recent budget request includes the addition of 60 compliance officers to allow for more workplace inspections.

New Severe Violator Policy

OSHA recently promulgated its Severe Violator Enforcement Program (SVEP) as one way to focus its enforcement activities on employers it believes have shown indifference to the health and safety of their employees. The targets of this program include employers who have been previously cited for “willful” or “repeat” violations as well as those who have failed to abate previously cited hazards.

OSHA has also said that it will inspect multiple company facilities if an employer is subject to the SVEP policy and if that employer has other facilities where similar violations may exist.

Administrative Penalty Adjustment

Certain administrative factors are used to calculate the penalties OSHA imposes. While there are limits on the monetary penalty OSHA can impose for a given violation, the agency recently announced that it is amending its administrative calculation system to allow for larger penalties under existing law.

Under this approach, the average penalty for a “serious” violation will likely balloon from $1,000 to $3,500. And the period of time that an employer could be exposed to penalties for repeat violations will increase from three to five years.

Proposed Ergonomics Recordkeeping Requirement

Last January, OSHA announced a proposal to modify the “OSHA 300 Log” by adding a separate column for ergonomic injuries. Employers are required to use the log to document their workplace illnesses and injuries.

If employers who are required to use the ergonomic column do so, OSHA will likely argue that those companies admit to having ergonomics hazards in their workplaces and that their employees have been injured from exposure to such hazards. Employers will then be required to implement an ergonomics program to prevent further exposure. If they fail to do so, they will likely face significant penalties.

Further, if their employees experience ergonomic injuries and those injuries are not recorded on the company 300 log, employers will likely face heavy fines for each missing entry on an employee-by-employee basis, which will perhaps be deemed willful violations. Under that approach, 25 missing injuries could be cited as 25 separate violations, each with a separate penalty.

Proposed Injury and Illness Prevention Program Requirements

OSHA recently announced its intention to propose a rule requiring employers to formally perform workplace hazard analyses under an umbrella known as the “Injury and Illness Prevention Program.”

The program would also require employers to abate those hazards even where there is no regulation to provide guidance on how to do so. While the General Duty Clause already requires that employers protect their employees from potentially serious injuries and illnesses in the absence of OSHA regulations, the new program would allow OSHA to cite an employer for both employee exposure to a given hazard and for the employer’s failure to formally identify the hazard prior to OSHA’s involvement with the company.

Bottom Lines

The DOL’s current political leadership continues to broaden its authority over U.S. businesses and enhance OSHA’s ability to punish those businesses that it finds to be indifferent or antagonistic to the health and safety of their employees. Businesses should anticipate that this approach will result in more inspections, larger penalties, and increased compliance costs.

Joseph Wellington is a partner in the law firm of Carmody & Torrance in Waterbury. He can be reached at jwellington@carmodylaw.com.

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