OSHA Penalties: How Low Can You Go?

Penalties for violating OSHA standards and imperiling workers health and lives are already embarrassingly low. But apparently not low enough for the Trump administration.

OSHA announced today that it was lowering penalties for small employers, employers without a history of serious, willful, repeat, or failure-to-abate OSHA violations and others “in an effort to minimize the burden on small businesses and increase prompt hazard abatement.”

Combined with Trump’s plan to significantly reduce the number of OSHA inspections next year, it doesn’t take an expert to predict that these changes can only mean more injuries, illnesses and deaths for workers in this country.

Why are they making these changes, you may ask?

According to the OSHA Press Release, Deputy Secretary Keith Sonderling stated that:

“All employers should be offered the opportunity to comply with regulations that help maintain a safe working environment…Small employers who are working in good faith to comply with complex federal laws should not face the same penalties as large employers with abundant resources. By lowering penalties on small employers, we are supporting the entrepreneurs that drive our economy and giving them the tools they need to keep our workers safe and healthy on the job while keeping them accountable.”

What’s Going On

OK, let’s look a bit deeper into what’s going on.

1. An “Opportunity” Agency: First, let’s be clear. It’s nice that Sonderling wants all employers to have to “opportunity” to comply with the law. But all employers already have had the “opportunity” to comply with regulations that help maintain a safe working environment.  In fact, employers not only have the opportunity to provide a safe working environment, they have the legal obligation to provide a safe working environment. And they’ve had that obligation for 54 years. It’s the law.

Just like I have the “opportunity” to comply with traffic laws.

2. Small Employers: Small employers (aka “entrepreneurs”) already do not face the same penalties as large employers. Section 17(j) of the Occupational Safety and Health Act directs OSHA to give “due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged.”

OSHA’s Field Operations Manual (FOM), the document that sets out policy and procedures concerning the enforcement of occupational safety and health standards, provided (until today) for up to a 70% reduction for employers with ten or fewer employees, and a 60% reduction for employers with 11-25 employees.

Chapter 6 of the new FOM expands the 70% reduction to all employers with 25 or fewer employees.

And they also deleted this paragraph from the original FOM:

When an employer with 1-10 and 11-25 employees has one or more serious violations of high gravity or a number of serious violations of moderate gravity that demonstrates a lack of concern for, or indifference to, employee safety and health, the CSHO may recommend that only a partial reduction in penalty shall be permitted for size.

So does this mean that small employers with high gravity or multiple serious violations of moderate gravity are now also eligible for the full reduction? (Gravity is a combination of he severity of the injury or illness which could result from the alleged violation, along with the probability that an injury or illness could occur as a result of the alleged violation.)

3. Quick Fix: Despite the press release, the modified reductions do not just apply to small employers. The new FOM expands the 15% “Quick Fix” reduction where any employer (large or small) corrects certain violations “immediately.” The Quick Fix already exists, but the definition of “immediately” has now been expanded from “during the inspection or the same day,” to up to 15 days if the “immediate”  fixes “require more complex abatement actions such as purchase of materials, fabrication of parts, training, etc.”

Both versions still require the employer to “prevent employee exposure to the hazard until the condition is abated to receive Quick-Fix credit.”

And the Quick Fix is not available for high gravity serious,” “willful,” “repeated,” or “failure-to-abate” violations, nor violations “related either to a fatal injury or illness, or to any incidents resulting in serious injuries to employees.”  Blatant violations that can be easily corrected (e.g. putting on a hard hat) are also not included.

4. History: Under the law, OSHA is also required to consider “the history of previous violations” when determining penalties.  Under the old FOM, if an employer had been inspected during the previous five years and had been found to be in compliance with OSHA standards or were not issued serious violations, they could receive a 10% penalty reduction.

The new FOM changes that. Now employers can receive history reductions, not just if they had been inspected and found in compliance, but if they have never been inspected before.

Let’s think about this. OSHA is an extremely tiny agency with an enormous mandate. Federal OSHA, with a budget of $632 million and only 738 inspectors, is able to reach every workplace in the country only once every 186 years.  And this number is expected to grow significantly if Trump succeeds in his proposal to cut OSHA enforcement staff by 13% and cut the number of inspections by almost 30%.

Employers who eventually get inspected and cited will get a reduced penalty — just by virtue of OSHA’s failure to be able to inspect more than a tiny handful of workplaces each year.

What that means is that the average employer is likely to go many, many years — or decades — before ever seeing an OSHA inspector, unless a worker is killed, seriously injured or files a complaint. Yet, employers who eventually do get inspected and cited will get a reduced penalty — just by virtue of OSHA’s failure to be able to inspect more than a tiny handful of workplaces each year.

In other words, OSHA’s budget cuts reward employers who fail to comply with OSHA standards. One might ask Sonderling why OSHA’s small budget should benefit employers who break the law?

Is that what Sonderling means by employers being given the “opportunity” to comply with the law?  Sound more like employers getting the “opportunity” to literally get away with murder.

Note: There are a number of other small wording changes which may be significant in the new, improved FOM (and there may be other changes that they are hiding), but I haven’t figured out all of their hidden agendas yet. Stay tuned.

Small Employers and Other Puzzles

Let’s take a minute to talk about OSHA penalties and small employers.

First, as I indicated above, OSHA penalties are already low — much lower than other federal agencies. The maximum penalty for a serious OSHA violation is only $16,550 per violation. (Penalties are tied to inflation, so they increase slightly every year.)

But that’s the maximum penalty. OSHA rarely issues the maximum penalty. For example, in 2024, the average penalty for a serious violation was only $4,083. (And only $2,580 in OSHA state plan states.)

Now, if an employer had several serious violations, the maximum penalty could easily get into the double digits — which might be problematic for a very small employer.

But remember: small employers are already eligible for up to a 70% reduction (or 60% for employers with 11 to 25 employees). Also, the OSHA budget contains over $61 million which is granted to the states to run an Onsite Consultation Program for small and medium size employers. They can essentially receive free inspections with no fear of citations.  Almost like a get-out-of-jail free card that small employers can take advantage of.

(One small note: Trump’s small business loving OSHA budget proposal is proposing a 1% cut to the Onsite Consultation Program next year.)

So, the question is: Do small employers — who can receive free consultation and significant penalty reductions — really deserve further reductions? Even if they are “entrepreneurs?”

What is this administration saying about deterrence — or the value of workers lives — by significantly reducing the number of inspections OSHA will be able to conduct, while reducing penalties at the same time?

Sonderling says these changes will give these little entrepreneurs “the tools they need to keep our workers safe and healthy on the job?”

So, explain to me how that works. Do some kind of new safety “tools” now accompany penalty reductions?   Will OSHA be conducting follow-up inspections of small employers who violate the law to ensure that they use the money saved from penalty reductions to improve safety in their workplaces?

I doubt it.

And finally, how do all of these changes keep employers “accountable?  What is the purpose of inspections and penalties if not to serve as a deterrent to employers who might be inclined to cut corners on safety and endanger workers’ lives?  And what is this administration saying about deterrence — or the value of workers lives — by significantly reducing the number of inspections OSHA will be able to conduct, while at the same time reducing penalties?

It’s not a mystery.