Safety News

As OSHA Fines Set to Nearly DOUBLE, Contractors Must Focus on Prevention

By: Anthony G. “Tony” Stergio

Buried deep within the bi-partisan budget that President Obama signed into law on November 2, 2015, was a provision that establishes catch-up adjustments for OSHA penalties
which is likely to be in place by August 1, 2016. The catch-up adjustment is tied to the percentage difference between the October 1990 Consumer Price Index and the October 2015
Consumer Price Index. That means a percentage increase of OSHA penalties will likely be about 78%. While OSHA will be required to initiate final rule making to effectuate the catch-up adjustment, OSHA will almost certainly take that step. Assuming this occurs, OSHA penalties as of August 1, 2016 are expected to be as follows:

Other than serious:
Maximum penalty of $7,000 will increase up to $12,460;

Serious:
Maximum penalty of $7,000 will increase up to $12,460;

Willful:
Maximum penalty of $70,000 will increase up to $124,600;

Repeat:
Maximum penalty of $70,000 will increase up to $124,600;

Failure to abate:
Maximum penalty of $7,000 per day will increase up to $12,460 per day.

Companies will need to take steps to avoid these penalties and prepare for the fee increase in the event penalties are assessed. Given the increased fines, it is important for companies to take increased steps with respect to safety and prevention in order to avoid workplace accidents and OSHA citations. In doing so, Employers should be mindful of the most frequent workplace hazards cited by OSHA. According to the agency, the most citations were issued for the following in 2015:

  1. Fall Protection – 7,402 violations
  2. Hazard Communication – 5,681 violations
  3. Scaffolding – 4,681 violations
  4. Respiratory Protection – 3,626 violations
  5. Lockout/Tagout – 3,308 violations
  6. Powered Industrial Trucks – 3,004 violations
  7. Ladders – 2,732 violations
  8. Electrical Wiring Methods – 2,624 violations
  9. Machine Guarding – 2,540 violations
  10. Electrical General Requirements – 2,181 violations

Focusing on these potential hazards should be a priority for all employer safety programs. Even the safest programs, however, may experience a workplace accident which results in an employee hospitalization, loss of an eye or an amputation. Under the new reporting standards, all such instances must be reported to OSHA within 24 hours of
when the employer learns of the occurrence. In the case of a fatality, an employer must make a report to OSHA within 8 hours
of the death.

The new reporting standard has resulted in a large influx of reports to OSHA. Thus, OSHA is no longer capable of investigating every report that is made to the agency. OSHA now engages in a triage process to determine which reported inpatient hospitalization, loss of an eye, or amputation are investigated.

OSHA will still investigate all:

  • Fatalities;
  • Multiple hospitalizations;
  • All injuries to persons under age 18;
  • Reports by employers with same or similar events in 12
    months;
  • Employers with egregious, willful or repeat citations;
  • Employers with failure to abate violations; and
  • Employers in the severe violator enforcement
    program.

 

For all other reports, OSHA will consider the following factors in determining whether to conduct an on-site investigation:

  • Was the incident the result of a safety program
    failure, lockout/tagout, etc.?
  • Was the employee exposed to a serious hazard (i.e.,
    explosive materials, combustible dust, falls, or heat)?
  • Were temporary workers involved?
  • Has another government agency made a referral?
  • Does the employer have a prior OSHA inspection
    history?
  • Is there a whistleblower complaint or inspection
    pending?
  • Is the employer a Cooperative Program Participant?
  • Did the incident involve health issues, such as
    chemical exposures or heat stress?

If a report does not meet the above criteria OSHA will open a Rapid Response Investigation (“RRI”). Under an RRI, an employer is directed to conduct its own incident
investigation and report its findings and corrective actions to OSHA. The employer must also post a copy of its findings where it can be viewed by employees. If OSHA is satisfied with the RRI submitted by the employer – no OSHA follow-up investigation related to the incident is likely to occur.

Employers can put themselves in the best position to avoid OSHA’s increased penalties by focusing on the same areas on which OSHA focuses with an eye toward OSHA’s onsite
investigation criteria.

 

About the Author:

Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Anthony G. “Tony” Stergio has extensive experience in the defense of State and Federal employment  discrimination claims, wage and hour compliance, non-competition agreements and employment policy design and review. He speaks frequently at employment-related seminars and also counsels clients regarding developments in various areas of State and Federal employment law. www.andrewsmyers.com.

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