OSHA plan to increase penalties surfaces in memo from Michaels

On April 22, David Michaels sent a letter to OSHA’s 10 regional administrators and the subject was administrative enhancements to OSHA’s penalties. The penalty changes look like they will become effective in the next several months.

This plan is separate from OSHA’s proposal to require employers to have accident and illness prevention programs, announced Monday (April 26) and outlined in my previous post.

Here are details on the penalty plan:

Time frame for “history”: The time frame for considering an employers’ history of violations will expand from the current three years to five years. If an employer has been inspected in the last five years and had no serious, willful or repeat violations and hasn’t had a failure-to-abate notice, the employer will receive a 10 percent reduction for history. Otherwise there will be no 10 percent reduction in penalties.

Circumstances for 10% increase: If an employer has been cited by OSHA for any high-gravity, serious, willful or repeat violations, or has been cited for a failure to abate notice in the previous five years, they will receive a 10 percent increase in their penalty, up to the statutory maximum.

Repeat violations: The time period for repeated violations will be increased from three to five years.

Reduction for using independent safety consultant: Area directors are authorized by this memo to offer up to a 30 percent penalty reduction to employers at an informal conference. Any reduction over 30 percent has to be approved by the regional administrator. Area directors will be authorized to offer an employer with 250 or fewer employees an additional 20 percent reduction if that employer agrees to retain an independent safety and health consultant.

Grouping violations may be optional: Where circumstances warrant, at the discretion of the area director, high-gravity serious violations related to standards identified in the Severe Violator Enforcement Program (SVEP) will no longer need to grouped or combined, but can cited as separate violations, each with its own proposed penalty.

Gravity-based penalties: OSHA will be adopting a penalty determination that provides for gravity-based penalties between $3,000 and $7,000 for serious violations.

Size reductions: No size reduction will be applied to employers with 251 or more employees.

“Quick FIx” reduction retained:The current “good faith” procedures in the field operations manual will be retained. The 15 percent 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 percent reduction for employers with a strategic partnership agreement will be eliminated.

Minimum penalty: The minimum proposed penalty after history, size and good faith adjustments will be increased to $500.

Overall impact

Dr. Michaels believes that these changes will generally increase the overall dollar amounts of all OSHA proposed penalties. He believes that the average penalty for a serious violation will increase from approximately $1,000 to an average of $3,000 to $4,000. OSHA hopes that higher penalty amounts will provide a greater deterrent and further encourage you employers to furnish a safe and healthful workplace for all of your employees.

If you have any questions regarding OSHA’s plan and the potential impact on your company, contact me at jstanley@fdrsafety.com or (513) 317-5644.

I expect that this penalty plan, along with the proposed accident and illness prevention program outlined in my other post today will be the subject of ongoing posts to this blog. To have our latest posts delivered automatically to your mailbox, click here.