OSHA on the Prowl
Employers should be aware that the Occupational Safety and Health Administration ("OSHA") has been loudly broadcasting to everyone who will listen that it is stepping up its enforcement efforts. As the Assistant Secretary of Labor for OSHA, David Michaels, proudly announced in a recent speech, OSHA cited almost twice as many employers for egregious violations in the first quarter of 2010 than it had in all of the previous fiscal year, and OSHA also issued the largest fine in its history to British Petroleum. Recent developments indicate that, if anything, Mr. Michaels understated the current trend at OSHA. Not only is OSHA more stringently enforcing its existing standards, it is also expanding its enforcement efforts under the general duty clause, and maximizing penalties for employers who are charged with safety violations.
Hexavalent Chromium Emphasis Program
On April 1, 2010, OSHA announced a national emphasis program on hexavalent chromium. Under this program, OSHA inspectors who notice processes that might involve hexavalent chromium exposure are expected to conduct personal air monitoring at the workplace to determine if any workers are subject to overexposure. Compliance officers will also inquire into the employer's engineering controls (which are expected to be implemented by May 31, 2010), medical surveillance and training to ensure they comply with OSHA's new hexavalent chromium standard. Additionally, any time OSHA finds a violation, it will conduct follow-up inspections to ensure that the employer has remedied the alleged hazard(s).
Emphasis on Ergonomics
Although OSHA has historically had difficulty addressing ergonomic hazards in the workplace, it recently declared its intent to enforce ergonomic safety through use of the general duty clause. The "general duty clause" states that every employer has a general duty to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." As a part of this renewed focus on ergonomics, OSHA is also seeking to amend its recordkeeping forms to require employees to record musculoskeletal injuries. These revisions to OSHA's recordkeeping rules are almost certainly a precursor to efforts to develop and implement a new and comprehensive ergonomics standard.
On April 22, 2010, Mr. Michaels issued an internal memo announcing several changes to the penalty calculation system outlined in OSHA's Field Operations Manual. The focus of those changes is, again, maximizing penalties for employers charged with safety violations in an effort to provide greater deterrence of unsafe work conditions. Notably, OSHA is increasing the time period for repeat violations from three years to five years. Under the new time frame, if an employer is cited for the same or a substantially similar violation more than once within a five year period, the subsequent violation can be deemed a "repeat" and result in a significantly higher penalty.
Similarly, the time frame for considering an employer's history of violations will expand from three years to five years. If an employer has been cited by OSHA for any high gravity serious, willful, repeat, or failure-to-abate violations within the previous five years, they will receive a 10 percent increase in their penalty, up to the statutory maximum. Furthermore, OSHA has explicitly stated that the average penalty for a serious violation will increase from approximately $1,000 to an average of $3,000 to $4,000.
OSHA is also making an effort to increase the number of violations per workplace incident. In the past, OSHA has typically only issued a single citation for each standard that it alleges an employer violated, regardless of how many employees are affected by the alleged violation. The Secretary of Labor, however, recently revised thirty-four different OSHA standards so that they explicitly permit OSHA to cite employers with a separate violation for each affected employee. In one recent case, an employer was cited 11 times for failure to provide proper training and failure to provide respirators when 11 of its employees were hired to renovate a building containing asbestos.1/ The employer challenged OSHA's authority to issue multiple citations and penalties for the same violations. The D.C. Circuit Court of Appeals ruled in favor of OSHA, holding that "[i]n giving the Secretary the authority to define what constitutes a violation, the Act necessarily gave the Secretary the authority to define the unit of prosecution." This holding could have an enormous impact on the fines handed down to employers for OSHA violations.
Taken together, these recent developments all emphasize the importance of ensuring that your workplace safety programs and practices are in compliance with OSHA standards. OSHA is clearly committed to stepping up enforcement and maximizing the penalties that it may assess upon employers. If you have any questions or concerns about health and safety issues in your workplace, please contact Robert A. Dimling or Andrew R. Kaake to ensure that you are taking all the necessary steps to protect your company.
1/ National Association of Home Builders v. Occupational Safety and Health Administration and Department of Labor, D.C. App. No. 09-1053 (April 16, 2010).