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Last month, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) revealed new enforcement initiatives and increased penalties that are expected to become effective over the next few months.  This increased enforcement marks a significant departure from the cooperative compliance approach followed by the Clinton and Bush Administrations, and will surely result in increased costs to employers.  

Severe Violator Enforcement Program Replaces the Enhanced Enforcement Program

OSHA Assistant Secretary, Dr. David Michaels, has released a final directive establishing a new "Severe Violator Enforcement Program" ("SVEP") that replaces the existing "Enhanced Enforcement Program."  The SVEP includes increased OSHA inspections for certain worksites, including mandatory OSHA follow-up inspections and inspections of other worksites of the same employer where similar hazards may be present.  While the SVEP is aimed at employers found to be "recalcitrant violators" who are "indifferent to their OSH Act obligations by committing willful, repeated, or failure-to-abate violations," the broad criteria contained in the SVEP identify an employer with only one violation as potentially  "indifferent to their OSH Act obligations."  The new program also presents problems for employers who have been issued a violation notice, but have not yet had the opportunity to defend the alleged violation(s).  

Employers can be "lined out" of the SVEP log by entering into a formal or informal settlement agreement in which the citation is deleted, or if an Administrative Law Judge, Review Commission, or court decision vacates the citation.  However, it is suspected that removal from the SVEP log will come too late, as the employer will already have suffered damage to its goodwill and reputation by being identified as a severe violator.  The SVEP will become effective in the next 45 days.

Injury and Illness Prevention Plans to Become Mandated by OSHA

OSHA's spring 2010 Regulatory Agenda also includes a new standard that would require each employer to implement safety prevention measures tailored to the actual hazards in that employer's workplace.  Instead of waiting for an OSHA inspection or a workplace incident to address workplace hazards, the proposed Injury and Illness Prevention Program ("I2P2") standard would require that employers develop a plan, with worker participation, to identify the hazards present in their worksites and address them before they cause an injury, illness, or death.  This new regulation is much broader than the current 1910.132, which requires the identification of hazards in the workplace solely for the purpose of choosing necessary personal protective equipment.  Currently, Injury and Illness Prevention Programs are not mandatory (under the OSH Act or the regulations); however, 24 states require a written injury and illness prevention program for certain industries. 

OSHA's plan for the I2P2 would require a three step process: (1) creation of a plan, which would include employee participation, for remediating risks that includes identifiable objectives; (2) implementation of the plan by the employer; and (3) achieving the plan's objectives on a regular basis.  OSHA expects to hold stakeholder meetings through the end of June to obtain input for final rule making.

Increased Penalties

New administrative changes to the penalty calculation system, as outlined in the agency's Field Operations Manual (FOM), will increase the overall dollar amount of all penalties.  Some of these changes will include:

  • An expansion of violation history from three years to five;
  • A limit on penalty reductions that can be offered by Area Offices using expedited settlement agreements;
  • Allowing Area Directors to cite high gravity serious violations identified under the SVEP as separate violations (carrying separate penalties);
  • Raising the gravity-based penalties scale by 50 percent (now ranging between $3,000 to $7,000); and
  • Making the minimum penalty for serious violations $500. 
Assistant Secretary Michaels hopes that these changes will increase the average penalty from the current $1,000 to between $3,000 and $4,000.  These administrative changes are expected to become effective in the next few months.  

In addition to these administrative changes, OSHA is seeking to change the maximum penalties allowed by law.  The current maximum penalty for a serious violation, one capable of causing death or serious physical harm, is $7,000, and the maximum penalty for a willful violation is $70,000.  OSHA is seeking to increase those numbers to $12,000 and $250,000, respectively.   

Increased Ergonomics Enforcement under General Duty Clause

As part of the Department of Labor's six-year strategic plan, OSHA has announced its intention to increase enforcement of ergonomics hazards under the OSH Act's general duty clause.  In addition to this increased enforcement, OSHA is proposing to revise its recordkeeping regulation by restoring a column on OSHA Form 300 to better identify work-related musculoskeletal disorders.  The Agency has stated that it does not plan to propose a new ergonomics standard at this time.