OSHA is proposing $1.2 million in penalties against Goodman Manufacturing Co., alleging 83 willful violations for failing to record or improperly recording work related injuries and illnesses at a Houston plant.

“Goodman had either not recorded or failed to properly record the nature and/or duration of 72 percent of employee injuries and illnesses from January 2008 to March 15, 2010, on its log,” OSHA said.

OSHA defines a willful violation as one committed with plain indifference to or intentional disregard for OSHA’s requirements or employee safety and health.

Last month Inside OSHA (subscription required to view) quoted unidentified sources as saying that “the agency has not found the number or degree of violations it had expected to uncover through the program.”

“A memorandum was issued on July 27 outlining the agency’s plan to halt programmed inspections under the OSHA recordkeeping National Emphasis Program (NEP), according to sources,” the newsletter reported.

Nonetheless, companies should continue to pay careful attention to accurately recording injuries and illnesses on their OSHA logs.

For more information on reporting, see my previous post “A recordable injury may not be what you think.”

OSHA announced the program last year and said it would concentrate on industries with traditionally high accident rates. Within those industries, companies that have reported low accident rates were to be the most likely to be audited because of suspicions that the low rate might be generated by under-reporting.

But Inside OSHA (subscription required to view) is quoting unidentified sources as saying that “the agency has not found the number or degree of violations it had expected to uncover through the program.”

“A memorandum was issued on July 27 outlining the agency’s plan to halt programmed inspections under the OSHA recordkeeping National Emphasis Program (NEP), according to sources,” the newsletter reported.

Inside OSHA quoted an unidentified OSHA spokesman as saying that agency wanted to take a different approach to the recordkeeping program. “OSHA has several strategies for targeting that it’s planning to work through to determine which gets at its concerns on recordkeeping,” the newsletter quoted the spokesman as saying.

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.

To keep up with the steps OSHA is taking to increase enforcement, subscribe to our blog and have it delivered automatically to your mailbox or reader.

But there are some things you can do to avoid having a violation classified as “willful” or “repeated” which attorney Arthur Sapper outlines in an informative article. Sapper, an attorney with McDermott, Will & Emery, is one of the real pros in the safety community, having served as deputy general counsel to the Occupational Safety and Health Review Commission.

First a little background. Violations found by OSHA to be “wilfull” or “repeated” carry higher penalties – up to $70,000 per violation – than do other-than-serious violations, which have a maximum penalty of $7,000. Under the Obama admistration, OSHA is issuing “egregious” willful citations at a rate five times greater than when the President was sworn in.

So here are Sapper’s five steps for avoiding a “willful” or “repeated” violations when dealing with an OSHA inspector. To read the full article, click here.

1. Don’t argue with the standards.
2. Know your company’s history with OSHA
3. Don’t ignore employee complaints or accident reports
4. Don’t argue with the inspector
5. Consult a knowledgeable attorney early on

To keep up with the steps OSHA is taking to increase enforcement, subscribe to our blog and have it delivered automatically to your mailbox or Reader.

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.”

We’ve seen the impact in our safety staffing operation. One Friday afternoon we were asked by a major cleanup contractor if we could find 10 safety professionals to put on the job by Monday morning. We were able to oblige.

OSHA reported this week that more than 39,000 workers were involved in the cleanup as well as 6,500 vessels. OSHA itself began deploying staff to the Gulf in late April and now has personnel at all 17 staging areas in Louisiana, Mississippi, Alabama and Florida.

Depending on their jobs, OSHA said, workers can face hazards from “heat, falls, drowning, fatigue, loud noise, sharp objects, as well as bites from insects, snakes, and other wild species native to the Gulf Coast area. Workers may also face exposure to crude oil, oil constituents and byproducts, dispersants, cleaning products and other chemicals being used in the cleanup process.”

The agency reported that it has made over 1392 site visits, covering vessels and staging areas as well as decontamination, distribution and deployment sites.

OSHA says it is also working to ensure that workers are not exposed to dangerous levels of toxic chemicals. OSHA has reviewed the BP monitoring data and has brought in a team of industrial hygienists to conduct its own independent monitoring both on shore and on the cleanup vessels.

Speaking to the American Society of Safety Engineers at the Safety 2010 meeting last week in Baltimore, OSHA’s head, David Michaels, said: “It’s an unfortunate fact that monetary penalties just aren’t enough. We believe that nothing focuses the mind like the threat of doing time in prison, which is why we need criminal penalties for employers who are determined to gamble with their workers’ lives and consider it merely a cost of doing business when a worker dies on the job.”

Later in the week, OSHA officially launched another enforcement initiative, the Severe Violators Enforcement Program.

The program, details of which were previously announced, would identify employers with repeated, serious violations, and subject them to increased inspections of the site where the violations took place as well as inspections of other sites the company may operate.

According to OSHA: “SVEP is intended to focus enforcement efforts on employers who have demonstrated recalcitrance or indifference to their OSH Act obligations by committing willful, repeated or failure-to-abate violations in one or more of the following circumstances: a fatality or catastrophe situation; in industry operations or processes that expose workers to severe occupational hazards; exposing workers to hazards related to the potential releases of highly hazardous chemicals; and all egregious enforcement actions.”

For advice on preparing yourself for OSHA scrutiny, see my article “How to meet the challenge of greatly increased OSHA scrutiny”

You may also wish to have a mock OSHA inspection conducted at your site.