KMCL has noted that OSHA has been very aggressive in its enforcement efforts and in seeking large penalties over the last several months. As described below, the initiatives the agency has recently announced signal that this intensity will continue to ratchet up over the coming months and likely beyond. As a result, employers should consider evaluating whether they are prepared for an OSHA inspection; the days of the proverbial slap on the wrist appear to be over.
Bigger Penalties
Effective August 1, 2016, OSHA will be permitted to increase its penalties for the first time in 25 years – and not by any nominal amount, but by approximately 80% instead.
As such, assuming an 80 percent increase, the maximum monetary penalties for OSHA violations effective August 1 will be:
- Other Than Serious – $12,600 (increased from $7,000);
- Serious – $12,600 (increased from $7,000);
- Repeat – $126,000 (increased from $70,000); and
- Willful – $126,000 (increased from $70,000).
More Shaming
OSHA relies not only on its fines to enforce its regulations but also on “shaming.” OSHA frequently issues press releases identifying employers that have been issued citations for serious violations found after both routine inspections and accident investigations. These press releases reveal the employer’s name, the cited violations, and the proposed penalties, all before the employer has the opportunity to resolve or adjudicate the citation(s) at issue. Employers that do not comply with OSHA’s regulations therefore face not only a monetary fine, but also the possibility of damage to their reputation. In some instances, OSHA has issued a press release about Company “A” but also named in that release Company “B” – for which “A” is a supplier – all in an effort to coerce “B” into positively influencing the safety performance of its supplier.
Increased Reporting
OSHA recently announced a new electronic reporting rule that will take effect on January 1, 2017. This new rule requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms. The collection of this information in electronic format will enable OSHA to use its enforcement more efficiently, meaning that the agency may be able to pursue more enforcement cases using the same resources. Some of the data will also be posted on the OSHA website, creating a risk of additional reputational concerns. OSHA believes that public disclosure will encourage employers to improve workplace safety and “nudge” employers to focus on safety. Information must be submitted by July 1, 2017.
These reporting changes are in addition to other recent changes in reporting requirements. As of January 1, 2015, the list of severe injuries that employers must report to OSHA includes:
- All work-related fatalities within 8 hours.
- All work-related inpatient hospitalizations, amputations, and losses of an eye within 24 hours.
OSHA has indicated that it will have increased focus on compliance with these new reporting rules in the coming fiscal year.
What Employers Can Do
Employers should seriously consider an OSHA compliance audit. Through an audit, employers can assess for themselves whether they will be vulnerable when OSHA comes knocking, as well as improve their safety program on their own initiative. As a general matter, it is advisable to conduct such audits under the auspices of the attorney-client privilege provided by outside or in-house counsel. When audit reports are generated to assist counsel in the provision of legal advice, they may be privileged from disclosure to OSHA. Such audits demonstrate an employer’s commitment to safety and also provide protection from the possibility of OSHA using an internal audit report as a roadmap to enforcement.
Dan Grucza, Esq.
Kazmarek Mowrey Cloud Laseter LLP
205-542-2560