New OSHA Enforcement Policy Will Raise Penalties

The Occupational Safety and Health Administration is known for its low penalties. Although OSHA’s maximum penalties have been gone up significantly since 2016, when Congress raised them and ensured annual increases tagged to the inflation rate, they are still often too low to modify the behavior of medium or large companies. The maximum penalty for a serious violation of an OSHA standard stands at $15,625 and a willful violation will set a company back $156,250.  Not a lot, especially for a large company. Amazon, for example, was recently fined around $60,000 for several violations of OSHA’s General Duty Clause — not a lot for a trillion dollar company.

Instance By Instance

OSHA has always had a way to multiply those penalties in extreme (or “egregious”) cases. Normally, exposing 2 workers or 100 workers to the same hazard would result in the same $15, 625  or $156,250 penalty (if it wasn’t negotiated down for a variety of reasons.) But in 1990 (the Bush I administration), OSHA issued its “instance by instance” (IBI) enforcement policy which allowed the agency, in especially egregious situations, to cite the same penalty for each worker exposed to a hazard.

So if 5 workers were found down inside an illegal 10-foot deep trench — and there were grounds for a willful violation  — instead of a $156,250 penalty, the total penalty could be $781,250 (5 x $156,250).  OSHA explained in 1990 that “The Act intends that this incentive be directed not only to an inspected employer but also to any employer who has hazards and violations of standards or regulations.”

And the IBI directive added that  “The large proposed penalties that accompany violation-by-violation citations are not, therefore, primarily punitive nor exclusively directed at individual sites or workplaces; they serve a public policy purpose; namely, to increase the impact of OSHA’s limited enforcement resources.”

OSHA used its so-called “egregious” policy only in rare situations where the agency issued willful violations and the employer demonstrated such negligence that a message needed to be sent forth to the country. These cases required meticulous documentation and review by OSHA enforcement officials and lawyers all the way up to the Assistant Secretary’s office in Washington DC. Back in the pre-Zoom days, regional enforcement staff would fly to Washington to make a presentation to the Assistant Secretary and Department of Labor Solicitors.

Consequently, these cases were few and far between.

Three Decades Later

Earlier this week, in order “to make its penalties more effective in stopping employers from repeatedly exposing workers to life-threatening hazards or failing to comply with certain workplace safety and health requirements,” OSHA updated its instance-by-instance policy applying it more widely and making it much easier to use.

This is intended to be a targeted strategy for those employers who repeatedly choose to put profits before their employees’ safety, health and wellbeing. — OSHA Assistant Secretary Doug Parker

Assistant Secretary for Occupational Safety and Health Doug Parker stated that  “This is intended to be a targeted strategy for those employers who repeatedly choose to put profits before their employees’ safety, health and wellbeing. Employers who callously view injured or sickened workers simply as a cost of doing business will face more serious consequences.”

Regional Discretion

Instead of being required to get national office approval of instance-by-instance citations, “OSHA Regional Administrators and Area Office Directors will now have the authority to cite certain types of violations as “instance-by-instance citations” without involvement of the national office.

High Gravity Serious And Willful

And instead of just willful violations,  OSHA enforcement staff can use instance-by-instance violations for high-gravity serious violations of OSHA standards specific to falls, trenching, machine guarding, respiratory protection, permit required confined spaces, lockout tagout, and other-than-serious violations of OSHA standards specific to recordkeeping.

“High gravity” means violations that may result high severity injuries (or deaths) and a greater probability of such incidents occurring.

In order to apply this policy, the employer still has to demonstrate some worse-than-normal behavior:

A decision to use instance-by-instance citations should normally be based on consideration of one or more of the factors listed below. The factors to be considered include:

• • The employer has received a willful, repeat, or failure to abate violation within the past five years where that classification is current.
  • The employer has failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye pursuant to the requirements of 29 CFR 1904.39. (OSHA’s severe injury reporting regulation)
  • The proposed citations are related to a fatality/catastrophe. (A “catastrophe” is defined as 3 or more hospitalizations resulting from the same incident.)
  • The proposed recordkeeping citations are related to injury or illness(es) that occurred as a result of a serious hazard.

Don’t Group So Much

OSHA also reminded enforcement staff not to “group” violations in certain situation.  For example, if there are three machines that don’t have the required guards, OSHA would generally group the violations into one violation.  OSHA is reminding enforcement staff that they have the discretion not to group violations “where there is evidence that worksite conditions giving rise to the violations are separate and distinct, or where different conduct gave rise to the violations.”

The purpose is to “deter employers from flagrantly disregarding their responsibilities to protect workers and comply with OSHA standards and regulations. Proposed OSHA enforcement activity may lose its deterrent effect when citations are grouped.”

Industry Is Not Amused

The business sector is not particularly pleased with OSHA’s new action. Seyfarth Shaw LLP law firm, which represents a high percentage of Fortune 500 companies, is alarmed:  “Secretary Parker’s revised enforcement policy harkens back to the days of Assistant Secretary David Michaels, when “shaming” employers into compliance was on the top of OSHA’s agenda, rather than collaborating with employers to ensure compliance.”

Horrors! For those of you who weren’t paying attention, OSHA’s so-called “shaming” policy consisted of OSHA’s issuance of press releases after citations that  specifically named employers, and described the hazards which OSHA had identified.

For those of you who just fell off the turnip truck, OSHA — like all enforcement agencies — has always routinely issued press releases after major enforcement action — even in Republican administrations. Michaels’ initiative was to simply issue more press releases than previous administrations. and the press releases included more detail about the violations.  One employer attorney told us that his clients don’t care about OSHA’s measly penalties; they just wanted to know how not to end up in a press release. His advice: make sure your workplace is safe.  Well, if the result of “shaming” is safer workplaces, than mission accomplished.

Similarly, Seyfarth recommends to its clients that: “In light of the recent guidance, employers must take a proactive approach to evaluating their workplaces to minimize risks. Moreover, employers must ensure that those responsible for OSHA reporting and recording obligations at the worksite under 29 CFR 1904 are fully complying with OSHA requirements.”

Sounds good. So what’s the problem again?

Oh, and one more thing that will likely rot Seyfarth’s socks. OSHA’s memorandum concludes with the instruction that: “Following issuance of IBI citations, OSHA will issue a press release for the purpose of furthering deterrence.”

Bravo OSHA. Keep up the good work.