Although the first 100 days of President Trump’s administration have seen continued delays of OSHA’s regulatory initiatives, OSHA has not implemented a stay on enforcement. OSHA has continued issuing significant citations against employers even though OSHA has curbed, at least for the time being, its policy of regularly issuing enforcement press releases designed to shame employers. Since January 20, 2017, OSHA has issued at least 166 citations with proposed penalties exceeding $40,000, according to information available on OSHA’s website.
The increase in penalties that took effect last August has contributed to the overall number of citations with total proposed penalties over $40,000. Serious citations that once carried a maximum penalty of $7,000 are now issued with a penalty of $12,675. Throughout the first quarter of 2017, we have seen citations with just two–to-four items result in penalties of $20,000 to nearly $50,000.
On April 12, OSHA issued its first enforcement press release of President Trump’s administration. OSHA likely issued the press release because of the gravity of the enforcement action against the employer, not because OSHA plans to return to the common shaming press releases of President Obama’s administration. The enforcement action at issue focused on a fatal accident that occurred in Boston when a 12-foot trench collapsed and ruptured an adjacent waterline, which then filled the trench with water. Two workers died in the accident. The enforcement action includes citations with a proposed penalty of $1,475,813 as well as a grand jury indictment of the company owner for manslaughter.
Employers must be careful not to conflate the regulatory pushback with a relaxation of enforcement actions. Employers must continue to strengthen and enforce their safety and health programs and culture to protect both their employees and their business. Given that OSHA can use any accepted citation, including an Other-Than-Serious citation as a basis for a Repeat classification for up to five years and Repeat citations now carry a potential penalty of $126,749, employers should carefully evaluate the factual and legal merit of any citation before ultimately accepting it.