OSHA Gets a Boost in New Budget Deal

The newly-signed bipartisan budget deal gives OSHA more bang to get your buck. The budget allows for an increase in penalties for the first time since 1990, allowing the agency to catch up to inflation. Beginning in August 2016, OSHA will be able to collect up to 80% more in fines when issuing a citation. One of its first targets will be those in emphasis programs such as the OSHA Severe Violator Enforcement Program (SVEP).

OSHA has outlined four criteria that will qualify a facility as a severe violator. Willful and repeated citations and failure-to-abate notices must be based on serious violations, except for recordkeeping violations which must be egregious (e.g., per-instance citations).

Specifically, the four criteria are:

  • A fatality/catastrophe inspection in which OSHA finds one or more willful or repeated violations or failure-to-abate notices based on a serious violation related to a death of an employee or three or more hospitalizations.
  • An inspection in which OSHA finds two or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high-gravity serious violations related to a high emphasis hazards (including Process Safety Management (PSM)).
  • An inspection in which OSHA finds three or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high-gravity serious violations related to hazards due to the potential release of a highly hazardous chemical, as defined in the PSM standard.
  • All egregious (e.g., per-instance citations) enforcement actions will be considered SVEP cases

Beyond SVEP, OSHA will target companies in any National Emphasis Program. Current National Emphasis Programs include:

  • Combustible Dust
  • Federal Agencies
  • Hazardous Machinery
  • Hexavalent Chromium
  • Isocyanates
  • Lead
  • Primary Meal Industries
  • Process Safety Management PSM
  • Shipbreaking
  • Silica
  • Trenching and Excavation

Even though some of these programs do not have specific regulations, the general duty clause (GDC) remains a strong tool for OSHA to cite violations and collect penalties. Under the GDC, OSHA can issue a citation if it can show that:

  • A hazard existed.
  • The hazard was likely to cause death or serious physical harm.
  • The employer had knowledge of the hazard or should have had knowledge because the hazard had been recognized by you, your industry, or common sense.
  • The hazard was foreseeable.
  • Workers were exposed to the hazard.

These types of citations are usually upheld in the judiciary process. Under GDC, OSHA also continues to cite for emerging issues that do not yet have specific standards in place such as ergonomics and workplace violence.

In October 2015, OSHA released the new confined space for construction standard 29CFR1926.1201 which affects all industries performing construction work in confined spaces. Also, a new injury reporting requirement released in January 2015 requires that employers report severe injuries such as amputations, loss of an eye, and the hospitalization of a single employee. Both the new regulation and revised reporting requirements has increased the scope of OSHA’s authority.

Although the budget does not improve OSHA’s ability to conduct inspections, the increased fines will pack more of a punch for violators. Obviously, it’s best to prevent the fatalities and imminent threats that will result in an inspection. If you are under scrutiny, make sure you have a well-trained workforce (with easily accessible documentation), defined recordkeeping practices in place, and an engaged employee workforce that helps you proactively solve problems before the agency comes knocking at the door.

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