After today, August 1, 2016, the civil penalties assessed by the Occupational Safety and Health Administration (“OSHA”) will increase by 78%. This is actually less than the 82% that was originally allowed by Congress, but not by much. The new maximum penalties will be as follows: (1) Serious, Other-than-Serious, and Posting Requirement Violations—$12,471 per violation; (2) Failure-to-Abate Violations—$12,471 per day beyond the abatement date; and, (3) Willful or Repeat Violations—$124,709 per violation. These new maximum penalties will apply to alleged violations occurring after November 2, 2015, but cited after August 1, 2016.
In the coming year, employers will see the immediate and practical impact of these increases. As we noted in a related post on the Work Knowledge Blog earlier this year, a couple of things could occur. First, OSHA could cite less varied violations and focus on actual or perceived safety issues, which would then allow employers and the agency to work together more effectively to build safer workplaces. Or second, OSHA could use the penalty increases to assess huge total penalties, which may lead to more litigation between employers and the agency regarding that assessment. The agency is set to issue revisions to its Field Operations Manual today to guide compliance officers on the implementation of the new penalties. Hopefully, these revisions will provide more clarity for employers on the ultimate impact.
Understandably, smaller employers are likely to be concerned by the increases due to the second scenario above. OSHA states that it will continue to provide penalty reductions based on employer size and other factors, but these reductions are still less than the total increase by the agency. As a result, smaller employers may still be impacted more sharply than others.
For more information on the new maximum penalties or on how you, as an employer, can be proactive in planning for OSHA inspections and audits to limit or avoid penalties in the first place, contact an attorney knowledgeable about OSHA and the regulatory requirements applicable to your business.