The House of Representatives this morning passed its Build Back Better bill which will significantly increase OSHA’s maximum penalties and OSHA’s budget.
Bottom line: OSHA is a tiny agency with a huge mandate. Raising penalties will increase OSHA’s deterrence ability — making it more costly for employers to violate standard and endanger workers. And a larger budget will enable OSHA to get to more hazardous workplaces and issue more regulatory protections for workers facing injury, illness and death from such unregulated hazards as heat, workplace violence and other infectious diseases.
Build OSHA Back Better
House bill (H.R. 5376) passed by the House of Representatives today, includes:
- $707 million to the Occupational Safety and Health Administration for carrying out enforcement, standards development, whistleblower investigations, compliance assistance, funding for State plans, and related activities. The money is to be spent over the next 5 fiscal years. OSHA’s current annual budget is only $591.8 million, so this represents a 20% annual increase each year over the next 5 years.
- $133 million to the Mine Safety and Health Administration over the next five years for carrying out enforcement, standard setting, technical assistance, and related activities. The current MSHA budget is $379.8 million.
The bill also includes significant increases in OSHA’s maximum penalties:
- Penalties for serious violations (and failure to abate violations) would increase from $13,653 to $70,000
- Penalties for willful violations (and repeat violations) would increase from $136,530 to $700,000.
As former OSHA head David Michaels tweeted when the bill was introduced “Many large employers treat current OSHA fines as cheaper than the cost of a safety consultant. This dramatic increase will save lives by encouraging firms to eliminate hazards before workers are hurt.”
We’re not to the finish line yet. The Senate still has to pass this language. (You know what to do!)
Fighting the Myths
You will likely see a lot of Republican hair-pulling and lies about the increase in OSHA penalties. Here’s the real scoop.
Myth: OSHA penalties are increasing by ten times!
Fact: Actually, OSHA penalties would increase by 5-fold. OSHA penalties have traditionally been set by amending the Occupational Safety and Health Act, which currently states that the maximum penalty for a serious violation is $7,000 and the maximum for a willful violations $70,000. So that looks like a ten-fold increase, right? Actually, however, in 2015, the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 was enacted which increased OSHA penalties approximately 5-fold (approximately the level they would have been if they had been indexed to inflation from 1990,) without amending the OSHAct. That bill also indexed OSHA penalties to the inflation rate. So the actual increase included in Build Back Better is only 5-fold.
Myth: OSHA will slap businesses violating OSHA’s Vaccine mandate standard with crushing $700,000 penalties!
Fact 1: OSHA did not issue a Vaccine Mandate. Its a safe workplace standard that requires either vaccines or testing — or neither if work is conducted exclusively remotely or outdoors.
Fact 2: The $700,000 penalty is the maximum penalty for a willful violation. Willful violations are rare and only issued if the employer shows “intentional disregard” of violations or “plain indifference” to employee safety and health. Few employers will receive willful violations for violating OSHA’s vax-or-test standard. Most will receive “serious” penalties. And few serious penalties are issued at the maximum level. In fact, OSHA’s current maximum penalty for a serious violation is $13,653, but the average penalty actually issued is $5,427 — hardly a problem for any medium to large employer. (Most employers will receive a much lower penalty — or no penalty — if they show that they have attempted, in good faith, to comply with the standard.)
Myth: The maximum OSHA penalty for any single serious violation would rise to $136,532, as would the penalty for each day the violation continues.
Fact: OSHA does not issue penalties for each day the violation continues, except for “failure to abate” violations where are rarely issued, and only when OSHA has cited an employer but the violation has not been brought into compliance since the prior inspection and is discovered at a later inspection.