In November 2015, the United States Congress enacted legislation requiring federal agencies to adjust civil penalty policies to account for inflation. The Department of Labor complied with that legislation and adjusted penalties for all of its agencies, including the Occupational Safety and Health Administration (OSHA). OSHA’s new penalty policy took effect August 2, 2016. The policy applies to all citations issued by OSHA after that date if OSHA alleges that the violations resulting in the citation occurred after November 2, 2015.
The revised penalty policy provides that for serious violations, and other than serious violations of OSHA posting requirements[1], the new maximum penalty will be $12,471 per violation. (The previous maximum penalty had been $7,000 per violation.) For violations involving failure to abate a hazard after direction by OSHA to abate, the new maximum penalty will be $12,471 per day beyond the abatement date set by OSHA. (The previous maximum penalty had been $7,000 per day beyond the abatement date.) For willful or repeated violations, the new maximum penalty will be $124,709 per violation. (The previous maximum penalty had been $70,000 per violation.) Under the Occupational Safety and Health Act, a violation is willful if the employer knew or should have known of the presence of the hazardous condition. The knowledge requirement is met if OSHA is satisfied that the employer could have known through the exercise of reasonable diligence. As a general rule, if OSHA is able to discover a hazardous condition and the condition is not transitory in nature, OSHA will presume that the employer could have discovered the same condition through the exercise of reasonable diligence. A repeated violation, of course, is a violation for which the employer had previously been cited.
In addition, OSHA revised its recordkeeping regulations to add requirements for the electronic submission of injury and illness information that employers are already required to keep in paper form under OSHA. First, OSHA will, beginning in 2017, require establishments with 250 or more employees to electronically submit information from their injury logs (Form 300) to OSHA on an annual basis. In addition, OSHA will, again beginning in 2017, require establishments with 20 or more employees but fewer than 250 employees in certain designated industries to electronically submit information from their annual summary of injuries and illnesses (Form 300A) to OSHA on an annual basis. Third, OSHA will require that employers, upon notice from OSHA, electronically submit information from recordkeeping forms to OSHA or its designee.
OSHA believes that electronic collection of data will provide several important benefits that will enhance workplace safety. OSHA intends to post the electronically submitted Form 300 logs and 300A Forms on its website where they will be easily reviewable to anyone seeking to access the information. First and foremost, OSHA believes that online posting of establishment-specific information will encourage employers to improve workplace safety and health to avoid reputational injury. In addition, OSHA believes posted data will be useful to employers who want to benchmark their own safety and health outcomes against similar employers. Easily available information, OSHA also believes, will allow workers to assess the safety of their own workplaces in comparison with other similarly situated workplaces. OSHA believes that easily accessible data will also improve the workings of labor markets by providing more complete information to job seekers. OSHA believes that employers will therefore work to provide safer workplaces to attract top-flight employees. Similarly, OSHA believes that this information will enter the investment markets and allow investors to identify firms with superior safety records. OSHA further believes that this information will enter consumer markets and allow consumers and consumer groups to make more informed decisions about employers with whom they wish to do business and products they wish to purchase.
OSHA’s new reporting rule also prohibits workplace practices that discourage employees from reporting injuries. OSHA was concerned that beefed-up reporting rules would pressure some employers to take actions that might provide incentives to workers not to report otherwise reportable injuries. OSHA believes that the vast majority of employers do encourage reporting of all reportable injuries and illnesses, but OSHA tries to take preemptive actions to eliminate disincentives to reporting. The initial draft of the rule was written in a way that raised concerns among employers that the final rule might list specific workplace practices that OSHA would prohibit as discouraging reporting. The final rule does not include such specificity, but prohibits discouraging of reporting only in a general sense. The preamble to the rule though provides some guidance as to practices that OSHA will view very skeptically. First, OSHA believes that disciplining an employee who reports an injury regardless of whether the employee violated safety policy constitutes discouragement of reporting. OSHA will review situations where reporting employees are disciplined for violation of vague company workplace policies, especially when reporting employees are disciplined more severely than other employees who work in the same way or where reporting employees are selectively disciplined for violation of vague work rules such as “work carefully.” OSHA will also review situations where policies mandating automatic post-injury drug testing because such policies can discourage reporting. Finally OSHA will review incentive programs, which can take many forms. An employer might, for example, enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, if the programs are not structured carefully, OSHA asserts they have the potential to discourage reporting of work-related injuries and illnesses without improving workplace safety.
[1] That is, violations of OSHA requirements to post notices, citations, complains, etc. in the workplace.
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