Current Trends in OSHA Enforcement: How This Affects You

By: Kathy Kent Toney, President of Kent Business Solutions

Part 2 of a 3-Part Series:
Keeping Your Employees Safe

Have you wondered if you’re in compliance with OSHA regulations around workplace safety?

Are you concerned that OSHA might come knocking on your door for reported violations?

I hope to put your questions to bed through a recent interview I had with Andrew “Drew” Brought. This is Part 2 of my 3-part series on Keeping Your Employees Safe.

This week he’ll be answering two questions. The first is:

How is OSHA Responding to and Enforcing Workplace Safety and Work Rules?

I have an interesting tidbit to share: Drew had to postpone our interview time slot late last week, because OSHA came knocking on one of his client’s doors. They were threatening to issue a warrant to be able to collect evidence around alleged workplace violations and Drew was counseling his client through its options. So…I encourage you to continue reading if you have any concerns on this week’s topic!

Before I get into the interview, here’s a funny video, courtesy of The Office.

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Kathy: Welcome again, Drew! Let’s talk first about what OSHA enforcement looks like these days. What are some important things businesses need to keep in mind to help prevent visits from OSHA?

Drew: the first is this:

1. Understand the OSHA Penalty Framework

It’s set forth by statute, and by regulation in terms of their monetary authority as well as their ability to seek injunctive relief, basically to shut down someone's operation if an operation is unsafe.  

The Occupational Safety and Health Act was passed by Congress in 1970. It sets forth provisions that allow the agency to bring an enforcement case against an employer in those situations where that employer is not satisfying the workplace health and safety rules. We mentioned those rules last week in the first topic.

Drew: the second important point is:

2. Recognize the Historical Application of OSHA’s Penalty Framework

The overall statutory background of the original penalty authority historically has not involved a lot of aggressive enforcement. The actual monetary penalties for pretty significant infractions have never really been a driver in terms of changing conduct.

Previous to 2015, the penalties ranged between $7,000 up to $70,000 per violation, dating back to 1970. And that is a key point…the maximum penalty would be $70,000, per violation. So, a typical inspection might have five or 10 different findings, which translated to five or 10 different violations. What might have started off or seemed like a relatively minor issue could have daisy chained quite quickly into a relatively significant penalty.

Now that being said, this was the penalty authority that was set forth under the OSHA act in 1970. Those penalties were not adjusted for inflation and remained on the books until 2015.

I’d like to point out that one of the reasons for a government penalty is to deter and change conduct. And if a business continues to get a significant penalty, the business is going to change their conduct. Even assuming they don't agree and adopt a safety mentality/safety culture, they will eventually change their conduct simply because of the cost of non-compliance.

OSHA had historically been viewed as a paper tiger, because pretty serious workplace injuries and even fatalities would often result in a pretty low five-figure penalty that might have ranged from $3,000 to $10,000. So, it was not uncommon in very significant workplace injury cases and investigations for the total maximum penalty to be less than $20,000. For a very small business, that's a very large fine, but for a Fortune 100 or 500 company, a $15,000 fine from a government agency is not necessarily going to necessarily change or alter the way that the company  does business.

And I hate to say it, because it's crude, but you hear this in the industry: it costs more to kill a fish than it does a person. What people mean is that the EPA has had a much more robust enforcement program for environmental violations between 1990 and 2015 than OSHA did. When you look at the casualty and injury rate in the workforce, many were saying that this is unacceptable,

Drew: the third important thing to understand is:

3. Trends & Shifts in OSHA Enforcement

In 2015, OSHA began adjusting penalties to account for inflation, for the first time since 1970. The range of $7,000 to $70,000 per violation was adjusted upwards to almost double, from $13,500 to $135,000. Since then, I've seen a major shift where an enforcement case could easily be $40,000 to $100,000, or even more. So, in the last several years, the cost of non-compliance has gone up significantly. Penalties have doubled since then, and I've done more OSHA enforcement defense work in the last three years than in the 12 years proceeding!

The best trend has been that businesses are complying with the health and safety rules.

Another important thing to understand is the difference between serious and willful violations. Willful is a situation where the company was aware and had knowledge, yet chose to proceed despite that knowledge and awareness. So, it's almost evidence of a bad act or bad faith as opposed to an accident.

So, if you had a serious accident and you didn't follow the rules, that’s a serious violation. That penalty is going to be in the mid-to-lower range. But if you have a situation where there's a repeat violation (or there's evidence or an indication that the employer was aware of the conduct and in a position to prevent that conduct and chose not to do so), that's considered a willful violation...not just a serious violation. And with that willful conduct, OSHA’s going to seek that six-figure penalty instead of a low-five figure penalty.

Here’s another thing to note: every year there are more than 5,000 individuals that die in the workplace due to a workplace fatality. You’re talking about 10-to-15 people that leave their home in the morning, go to work and don't come home because of a workplace accident! We have safety rules to protect all this and it's still happening. So, I think that's one of the reasons we've seen this more aggressive shift in the last five years as well.

Here’s another thing that's interesting, and this is more just a side note: there have been many outsiders (and I'm not turning this into a political piece at all) who have challenged the current administration about regulatory reforms…arguments that the agency has not been enforcing regulations or ensuring that businesses are complying with all the rules. That has not been the case in the current administration with OSHA. I have actually seen some acceleration in terms of more protection, again, maybe because of enforcement of workplace health and safety rules.

Kathy: that’s great info, Drew!

Now let’s talk about OSHA’s COVID-19 response. We touched on some of this last week. Is there new info you can share and/or summarize for those reading this?

Drew: yes. Here’s some info we didn’t cover:

OSHA’s COVID-19 Response

One of the things the agency is trying to do is balance and protect the unknowns that we have while trying to ensure a safe workplace. There have been a number of skeptics and critics who've said the agency has not done enough to pass workplace restrictions related to COVID-19. It’s noteworthy that there have been no new regulations issued by OSHA.

What OSHA has done instead is to develop a number of different guidance documents and enforcement guidelines for different industries that outline what the expectations are, e.g., the meatpacking or transportation industries. You can find them on their COVID Resource page.

Lots of different sectors have been identified and have different guidance documents in which the agency identifies the criteria and the expectations for the employers...to ensure that that the workforce is protected.

Where we're seeing the most significant amount of guidance, and the most significant enforcement, is in the Healthcare sector. And that's not a surprise…if you think about which industries where employees are most likely to be impacted by COVID-19, it's this sector. So, the agency is focusing on the highest-risk categories.

The other thing that is phenomenal is the number of complaints that have been received related to COVID-19. Through August 10, 2020, there have been almost 30,000 complaints made to OSHA in the State programs, alleging that employers had not satisfied duties regarding COVID-19. That's a lot of complaints that the agency has to look into! Of those 30,000 complaints, the agency had worked through about two-thirds of them. About 20,000 of those complaints had been investigated and closed, meaning either they disagreed with the employees and/or they took action. They either brought forward an enforcement case, or brought a recommendation and issued what's known as a Hazard Alert Letter.

OSHA will frequently, in lieu of issuing an enforcement case and issuing a penalty, send this type of letter to a company. This letter typically states that OSHA is not bringing an enforcement case against a them; however, they will outline practices they need to follow to change their business.

It's a little bit like a shot across the bow, like a warning, from a police officer saying; “Okay, I pulled you over. I'm not going to give you a ticket this time. But if I have to come back again, or if I see it again, it's going to happen next time.”

So, to summarize, there are two things OSHA will do:

• They will issue a Hazard Alert Letter; or
• They will bring about an actual enforcement case in which a penalty is proposed.
  

Then the penalty is either closed out, in which case, the complaint was not justified. Or, if the complaint was justified, the employer will receive a Hazard Alert Letter or an enforcement case will proceed.

For most of the 30,000 complaints, the agency simply sent a letter to the employer saying something like this:

“We've received allegations that you are not protecting your employees. The allegations are as follows: you need to respond to this letter, within one week, identifying the actions that you've taken to protect employees. If your response is not satisfactory, then we are going to do an onsite inspection.”

So, when I say there have been 30,000 complaints, that doesn't mean that a government inspector has actually gone out to visit the work place. OSHA doesn't have the resources to do that.

Kathy: thanks for clarifying what OSHA’s COVID-19 response has been. I’m sure a lot of people have been wondering about this!

We talked a little bit about this next topic last week, but I think it’s important to ask again:

How Can an Organization Help Prevent OSHA from Knocking on Their Door?

Drew: While there are a variety of best practices, three key areas to focus on:

1. Ensure a Good Line of Communication

If there are legitimate concerns about the workplace and safety, there should be a mechanism by which employees and management can have a free-flow of dialogue about what those risks and concerns are. And a lot of this just comes down to trust. You don't want an employee to pick up the phone and call the government, which triggers an OSHA investigation, as opposed to them going in and talking to their manager to express their concerns.

If your employees are not having a dialogue in a candid work environment, and I understand you're not always going to have that…there's always going to be some level of apprehension. But the reality is, people are picking up the phone and calling the government as the first line of defense for protection. As you know, there's going to be pretty significant problems as a result of that.

Drew: The second is:

2. Commitment to Health & Safety

Have a dedicated person or resources that are focused on health and safety issues. We talked about this last week.

Drew: The third is:

3. Ensure Constant Learning and Incorporate Changes

Focus on changes over time and make sure how those changes get incorporated, because any business is not static. The world around us is changing, and we need to constantly be in a position of learning, and in the same way, you have to have dedicated resources…someone who's focused and paying attention to the changes.

And if they receive a violation, they need to ensure they don't repeat the same mistake again. From a lessons-learned perspective, that's all important.

So, one of the key takeaways is to ask these questions:

• What are the lessons learned?
• How can we do better next time?
• How can we ensure this doesn't happen again?

Kathy: Drew, this is such great information. Thanks so much for your taking your time to share your wisdom with us!

Drew: my pleasure.

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Stay tuned for next week’s interview with Drew. He’ll be answering the following question:

What are Important OSHA Requirements Around PPE and in Particular, N95 Respirators?

In the meantime, feel free to reach out to him if you have any other questions about health and safety in the workplace.

 
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