It’s no secret that OSHA has aggressively pursued enforcement under President Obama’s Administration. With the closure of fiscal year 2011, OSHA published its semi-annual regulatory agenda, which shows the following trends regarding OSHA’s enforcement initiatives:
- The average proposed penalty for “serious” violations more than doubled in 2011.
- Regarding “significant” cases (such as investigations producing fines totaling at least $100,000), 215 cases were filed in 2011, which represents a 31% increase compared to 2010. Some “mega-penalty” citations have exceeded $1 million in 2011.
- In 2010, OSHA implemented new penalty guidelines that forced higher proposed penalties and allowed fewer reductions for employer size, good faith or history of violations.
- OSHA is more aggressively issuing “repeat” citations, which may carry a penalty of $70,000. The rules around this have changed, to the disadvantage of multiple-location businesses, and the time constraint qualifying repeat violations has increased from 3 to 5 years.
When it comes to enforcement, employers can expect to see a continued increase in OSHA activity for 2012. Despite the 100% increase in fine cost per violation, OSHA director Dr. David Michaels recently stated that the higher penalties are still too low when compared to other regulatory agencies.
KPA’s records show that the agency is following through on its intentions. We have seen a sharp increase in frequency of OSHA visits to clients in February, especially in New England states.
Changing Priorities at OSHA
In a January 12, 2012 interview with Bloomberg, OSHA director Dr. David Michaels said that the agency plans to issue rules in 2012 updating regulations concerning hazard communication, confined spaces, and recordkeeping (OSHA 300 Logs). For example the recordkeeping change may include a requirement for auto dealers to maintain OSHA 300 logs as well as vastly increase accident reporting requirements. While it is doubtful that all of these rules would pass into law, this activity indicates a shift in focus from previous hot issues. The agency is also setting sites on modifying Permissible Exposure Limits (PELs) and on Jan. 6, 2012, OSHA sent a letter to the Small Business Administration (SBA), informing the SBA of its intention to convene a Small Business Advocacy Review panel for its I2P2 rule. Panels are convened for all rules expected to have a significant impact on a substantial number of U.S. small businesses and are typically viewed as one of the first steps in the process of implementing a large rulemaking.
While OSHA’s overall budget remains about the same as last year, there are some significant shifting of funds within the agency. The FY 2013 proposed budget includes a 23.5% increase, including 37 new employees, for the agency’s 21 whistleblower protection programs. In other words, the current administration is encouraging workers to come forward with whistleblower complaints and the agency is targeting employers who retaliate against workers who file OSHA complaints. This reinforces the value of effective Safety Committees which promote communication of safety issues between employees and management.
Lower Priorities
In 2013, OSHA will no longer offer its Corporate and Merit Voluntary Protection Program (VPP) to new sites. The VPP star program will also decrease in services.
While OSHA continues to work on potential rulemaking on the musculoskeletal disorder recordkeeping (MDS), the proposed rule has been reclassified as a long-term action with no timetable for completing the rulemaking process. This means that the proposed separate 300 logs for musculoskeletal disorders may not be a requirement for a while, although back cases will continue to be recorded as either injuries or illnesses depending on the condition resulted from an event or exposure.
Summary
To sum it up, funds for whistleblower programs are going up, enforcement funding will stay the same, but there is a projected increase in inspection frequency. Some compliance assistance funding will be cut.
Dealerships and service centers should continue to review their ongoing assessments of workplace hazards and ensure that their employees are adequately trained on the numerous regulatory requirements enforced by OSHA. Compliance is still the best defense.
The California Supreme Court has ruled that employers only have to provide meal periods to workers, they do not have to make sure that employees actually take them.
