The resulting large aggregate penalties are part of a strategy which OSHA believes improves the efficiency and effectiveness of the agency and conserves its limited resources by making an example of the employers who are cited. In non-egregious cases, OSHA issues one violation for all instances of the same hazard, and as a result the proposed penalties are much smaller than egregious penalties.

OSHA has revived the strategy and is issuing many more so-called “egregious” citations, including two instances last week that resulted in large proposed fines in Connecticut and Wisconsin. The question is whether those violations will hold up if the employers choose to litigate them.

According to OSHA, the violation-by-violation citations are not primarily punitive nor exclusively directed at the individual worksites or workplaces involved. OSHA believes that these citations serve a public policy purpose; namely to increase the impact of OSHA’s limited enforcement resources.

In Middletown, Conn., OSHA cited three construction companies and 14 site contractors for 371 alleged workplace safety violations, and proposed $16.6 million in penalties in connection with an explosion at a power plant construction site that killed six workers and injured 50 others. The accident occurred when natural gas was pumped under high pressure through new fuel gas lines to remove debris.

In the other accident, OSHA said a worker at a grain storage bin was engulfed in soybeans up to his chest and almost died. The agency issued egregious violations and proposed fines of $721,000 against a Burlington farmer cooperative.

In my experience, when OSHA has to litigate the egregious citations, they are required to prove in each instance of violation that if an accident occurred it was substantially probable to cause death or serious physical harm, there was employee exposure to the hazard and that the cited employer knew of the hazard or could have known through the use of reasonable diligence.

In large egregious citation cases that are aggressively litigated by the employers it is very difficult for OSHA to sustain its burden of proof for each and every instance of violation.

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The changes to OSHA were originally in a bill called the Protecting America’s Workers Act, but the measure was merged with one to tighten enforcement in the nation’s mines after an accident in West Virginia earlier this year killed 29 coal miners.

Committee Republicans said changes to OSHA should be stripped out of the mine safety bill and made a motion to do so, but it failed in a vote.

The bill now moves to the House floor.

For a more complete account of Wednesday’s debate, see an article in “The Hill.”

To keep up with this bill, as well as the administrative steps OSHA is taking to step up enforcement, subscribe to our blog and have it delivered automatically to your mailbox or Reader.

“Penalties alone will not improve workplace safety—remember, in most cases, penalties are imposed after the fact of an injury or fatalities,” said Jonathan Snare, speaking for the Coalition of Workplace Safety, which includes the U.S. Chamber of Commerce and other employer groups. He was testifying before the House Education and Labor Committee.

“The critical mission of OSHA is to assist employers to make sure these injuries and fatalities never occur in the first place. … This approach can be achieved by using existing programs that offer compliance assistance, outreach, and training.”

David Michaels, Assistant Secretary of Labor of OSHA, had a different point of view.

“Safe jobs exist only when employers have adequate incentives to comply with OSHA’s requirements,” he said. “Those incentives are affected, in turn, by both the magnitude and the likelihood of penalties.”

Snare and Michaels disagreed on a number of other proposed amendments to the OSHA Act, which have been merged into a bill that would make changes to the Mine Safety and Health Act:

• Rules that would no longer grant employers an automatic stay of requirements that they abate an OSHA violation that they are contesting:

  Michaels said the change was needed among other reasons because OSHA is often forced to negotiate a reduction in penalties in order to obtain agreement from an employer to correct a hazard while a violation is under contest. As a result, he said, “the average current OSHA penalty is only around $1,000.”

  But Snare said: “Abatement is more than just protecting against a hazard; it is part of accepting responsibility for the violation. Mandating abatement before allowing the employer to exhaust their adjudicative process would be like asking a criminal or civil defendant to pay a fine or serve a sentence before the trial is held.”

• Increased protection for whistleblowers:

  
  Michaels said the proposed changes would bring whistleblower provisions in the OSHA Act in line with whistleblower provisions for other agencies.

  “The proposed legislation would prohibit employers from discouraging the reporting of
  work-related injuries and illnesses by employees,” Michaels said. “OSHA is strongly committed to accurate reporting of both injuries and illnesses.”

  But Snare said the proposals would “create additional complicated and costly procedures for adjudicating whistleblower cases, without any evidence or justification that the existing protections available to employees under Section 11(c) of the OSH Act are somehow deficient. The CWS is also concerned with other proposals in Section 701 which are overly punitive on employers and will benefit no one, aside from trial lawyers.”

As I said in a previous blog posting, this bill would radically alter the OSHA landscape. Employers would be well advised to follow the bill’s progress closely and begin examining their safety programs in light of changes that would occur if the bill is passed.

To read the full text of Snare’s statement, click here.

For Michaels’s statementclick here.

The Education and Labor Committee is likely to vote on the bill in the next few days and the full House may vote by the end of the month.

To keep up with this bill, as well as the administrative steps OSHA is taking to step up enforcement, subscribe to our blog and have it delivered automatically to your mailbox or Reader.

The bill would also greatly reduce an employer’s ability to delay abatement of contested violations.

Attorneys at the firm of Morgan Lewis have written an excellent article with additional details about the implications of the bill.

Morgan Lewis says, and I agree, that employers need to pay close attention to the proposed law and the impact it could have on their operations. Employers also need to be reviewing their health and safety programs in light of the dramatic changes that could come.

The 10-year term would apply in situations where a violation contributed to the death of an employee. The current maximum sentence under the OSHA act is six months and the law does not specify that officers and directors can be held criminally responsible.

Employers need to pay close attention to this bill since the provision on criminal penalties is only one of several proposed enforcement changes in the bill that would radically alter the occupational safety and health landscape for employers. In my view the bill would significantly change OSHA as we now know it.

The proposed measure is in keeping with the Obama administration’s philosophy of substantially increasing enforcement, which OSHA has already been carrying out administratively in such areas as training, recordkeeping, ergonomics and severe violations.

The proposed revisions to the law, introduced as the Protecting America’s Workers Act, have been percolating for months. But it now appears that the House Education and Labor Committee will hold a hearing on the bill on July 13, followed soon after by a committee vote. The bill could reach the floor of the House by the end of the month.

The bill originally was a standalone measure, but now has been combined with a bill to make changes in the Mine Safety and Health Administration. Pressure is strong to change MSHA because of the fatal accident that occurred earlier this year at a Massey Energy Co. mine in West Virginia and that in turn makes it more likely that changes to OSHA will pass as well.

One especially significant change to the OSH Act would allow officers and directors to be held criminally liable In cases where they had knowledge of violations that led to a fatality. The law currently states that an employer may be held criminally liable, but the definition of an employer is vague enough that it rarely is enforced against individual managers. The new bill specifies that the term “employer” means officers and directors.

Other changes In the bill:

• Employers would be required to immediately begin abating serious, willful or repeated violations. Currently abatement requirements are automatically stayed if an employer contests a violation. Under the bill, employers who want a stay would have to ask for one from the Occupational Safety and Health Review Commission. (I call this provision the “guilty until you prove yourself innocent” clause.)
• Protections for “whistleblower” employees would be significantly strengthened. It appears to me that the bill would make it virtually impossible for employers to discharge an under-performing employee for cause if that employee makes any kind of complaint about safety conditions, warranted or not. This has a potential to severely inhibit employers’ ability to hold employees and managers accountable.
• Prison terms of up to five years could be imposed on any officer or director of a company that knowingly violates any OSHA standard, rule or order if that violation contributes to serious bodily harm to an employee. Currently there is no provision in the OSHA act for a prison term in such situations.
• The maximum civil penalty for willful and repeated violations would increase from $70,000 to $120,000. If the violation resulted in a death, the maximum penalty could be $250,000.
• The maximum civil penalty for serious violations would increase from $7,000 to $12,000. However, if the serious violation resulted in a death, the maximum penalty could be $50,000.
• The maximum civil penalty for other-than-serious violations would also increase from $7,000 to $12,000.
• Minimum and maximum penalties would be adjusted for inflation at least once every four years beginning in 2015.

For tips on how to prepare your company for increased OSHA scrutiny, see my article “How to meet the challenge of greatly increased OSHA enforcement.”

The law firm of McDermott Will & Emery has published an excellent analysis of the bill, which may be viewed by clicking here.

Rod Smith and Pat Miller of the Sherman & Howard law firm have prepared an excellent summary of the provisions of the bill, which was introduced by the late Sen. Edward Kennedy (D-Mass.) and Rep. Lynn Woolsey (D-Calif.).

The bill’s purpose is to “expand coverage under the Act, to increase protections for whistleblowers, to increase penalties for certain violators, and for other purposes,” according to the text of the bill. The bill has 19 co-sponsors.

For more information: http://www.govtrack.us/congress/bill.xpd?bill=s111-1580

Several OSHA-related bills had already been introduced on the House side, some with provisions similar to the Senate bill.

The program, called NEP for short, starts in August was developed in response to Congressional hearings last year on a perceived problem of underreporting. The initiative is in line with OSHA’s movement towards a more enforcement-oriented approach.

Inspections under the initial stage of the program will take place over 12 months with an expectation that the program will be expanded after data from those initial inspections are analyzed. While the program is limited to states under federal OSHA’s jurisdiction, state plan OSHA programs are encouraged to conduct their own recordkeeping enforcement initiatives.

Included in the inspections will be a review of medical files for both occupational and non-occupational cases for 2007 and 2008, including 301 forms, Workers’ Compensation forms, absentee reports, and audiograms, for a selected sample of employees. Interviews will also be conducted with managers and employees to determine whether there is an injury-reporting system in place and whether incentive programs discourage employees from reporting new cases. Recordkeepers will be questioned to determine their level of training and knowledge of the recordkeeping regulations. Healthcare providers will be asked whether the employer has tried to influence the treatments provided and the recordability of cases. A limited walk-around inspection of the employer’s facility also will be conducted to determine if the hazards in the facility are consistent with the injuries and illnesses on the 300 log. Citations may be issued for any observed violations.

Employers should get ready for these inspections by:

• Reviewing 2007 and 2008 cases to gauge the accuracy of their OSHA 300 logs and make
  sure there is an OSHA 301 or its equivalent for every recordable case.
• Ensuring that appropriate training has been provided to recordkeepers.
• Reviewing the effectiveness of both the reporting system for illnesses and injuries and the process for routing medical information from internal and external healthcare providers to the recordkeeper.
• Evaluating whether the safety incentive program, if there is one, improperly discourages the reporting of work-related injuries or illnesses.

If you have questions or concerns about this program or how to get ready for it, please

1. Larger monetary penalties for violations: These are included in a measure called the Protecting America’s Workers Act, which is expected to pass Congress.
2. More aggressive enforcement: The new Secretary of Labor, Hilda Solis, has pledged to “put enforcement back into the Department of Labor” – including more OSHA inspections. Additionally, OSHA’s aggressive National Emphasis Programs are ramping up in various industries, including refineries, chemical companies, general manufacturing, construction and any industry involving combustible dust. Employers can expect a shift away from the cooperative policy of the recent past to a more aggressive, citation/violation-based approach.
3. More inspectors: OSHA will probably increase its enforcement staff to support its emphasis on high-risk industries, such as construction and heavy manufacturing.
4. More attention to recordkeeping: OSHA will increase its focus on this regulation because it believes that many employers have been inaccurately reporting injuries and illnesses for some time.
5. More liability for actions of subcontractors: New this year is enhanced OSHA liability for employers on multi-employer worksites. The 8th U.S. Circuit Court of Appeals ruled that OSHA can increase its citation/violation authority over owners and controlling employers for the safety actions of subcontractors. The case was Solis v. Summit Contractors.

So what can companies do to get ready for this tougher enforcement environment?

The best step is to ensure that your safety and health program is effective and enforced at all levels of the organization.

You can also have a mock OSHA inspection conducted in your workplace. This will review hazards assessments, training and required documentation, safe job procedures, operator certifications, recordkeeping and required safety and health program implementation (lockout, confined space, fall protection, etc.). Utilizing third-party professionals can ensure unbiased feedback about your programs.