The Occupational Safety and Health Administration (OSHA) has announced a number of new safety initiatives. These announcements suggest that employers should prepare for an increase in regulatory actions by OSHA, including significant enforcement activity. The recent announcements include the following:
A. Plans to Beef Up Enforcement Action Against Violators
A subcommittee of the House Education and Labor Committee held a hearing on April 30, 2009, concerning OSHA's Enhanced Enforcement Program (EEP). The EEP is intended to identify high-risk employers based upon poor safety records and target them for increased scrutiny (and potential criminal prosecution). In a March 31, 2009, report, however, the U.S. Department of Labor's Inspector General’s Office asserted that the EEP, as originally designed, is flawed. Specifically, the Inspector General claimed that OSHA had not conducted necessary inspections and enforced enhanced settlement provisions for 97 percent of employers that qualified for increased scrutiny under the EEP.
OSHA responded to the Inspector General's findings by announcing that it is readying a new program called the Severe Violators Inspection Program (SVIP), which is intended as a comprehensive revision of the EEP. According to OSHA, the SVIP is being designed with an eye toward helping OSHA to better identify alleged disobedient and continually non-compliant employers and target them for additional enforcement action. The following are some of the changes OSHA is considering implementing as part of the SVIP:
- Mandatory follow-up inspections of OSH Act violators;
- An increased number of inspections of multiple locations within identified companies;
- Additional enhanced settlement provisions;
- More thorough probing of employers' past behavior to identify systemic safety problems (which could trigger additional inspections); and
- Continual review of the SVIP to make necessary improvements.
OSHA's plan to roll out the SVIP signals an imminent shift in the scope and frequency of its monitoring of employers' compliance with the OSH Act and its intention to utilize additional enforcement mechanisms to improve compliance.
B. Potential Increase in Criminal Enforcement Activity
Also, on April 30, 2009, the Acting Assistant Secretary for OSHA advised a House subcommittee that he will be reviewing whether OSHA is referring to the Justice Department all potential criminal cases for prosecution. Under the OSH Act, criminal penalties may be imposed where there is a willful violation of an OSHA standard that results in the death of an employee. OSHA's Acting Assistant Secretary announced that he would review how OSHA might best work with the Justice Department in prosecuting such cases.
C. Increased Inspections at Certain Federal Worksites
In May 2009, the Labor Secretary issued a memo to other cabinet secretaries advising them that OSHA will increase inspections of projects at federal worksites for which economic stimulus funds are provided. Further, there will be a special focus on construction work at such sites. The memo indicated that the cabinet secretaries seek to enroll their staffs in a training program offered by OSHA to federal employees at OSHA Training Institutes across the country.
D. Increase in OSHA Inspectors Sought Under Fiscal 2010 Budget
The fiscal 2010 budget proposed by President Obama includes a request for funding for 130 new OSHA inspectors, with a focus on inspectors who can speak foreign languages in order to address changes in workplace demographics.
E. Recordkeeping Initiatives
Record keeping requirements are also an area of increased activity. On January 7, 2009, H.R. 242 was introduced “to direct the Secretary of Labor to revise regulations concerning the recording and reporting of occupational injuries and illnesses under the Occupational Safety and Health act of 1970.” Further, in April of 2009, H.R. 2113, the “Corporate Injury, Illness and Fatality Report Act of 2009," was introduced. That bill would require the Secretary of Labor to prescribe regulations requiring employers with more than one establishment and not fewer than 500 employees to “maintain accurate records of, and to make periodic and certified reports, not less than annually” on “the number and rates of work-related deaths, injuries, and illnesses and compliance data” and “the total number of violations and any citations issued as a result of such violations.”
F. Other Reform Initiatives
In April 2009, Rep. Lynn Woolsey (D-CA) introduced H.R. 2067, the “Protecting America’s Workers Act.” That legislation would:
- Extend OSHA protections to workers not currently covered by the OSH Act;
- Increase both civil and criminal penalties and adjust those amounts for inflation;
- Expand whistleblower protections;
- Create a right of workplace accident victims to be heard during an investigation; and
- Remove the requirement for a workplace death to occur before criminal penalties can attach.
On April 30, 2009, Rep. Tim Bishop (D-NY) introduced H.R. 2199, the “Protecting Workers from Imminent Dangers Act of 2009.” The legislation would give additional powers to OSHA to immediately halt work under extreme conditions if it determines workers are under imminent danger. The legislation would also prohibit discrimination against an employee who refuses to perform a duty that has been identified as the source of imminent danger. Further, an employer failing to remove any employee from exposures to a hazard could be assessed a fine up to $50,000.
Ramifications for Employers
Cumulatively, these anticipated changes in the area of workplace safety strongly suggest that employers should actively review the strength of their current occupational safety programs. This would include a review of workplace safety policies and renewed focus on enforcing workplace safety standards and rules.
Where appropriate, safety audits might provide useful information and demonstrate proactive employer efforts to improve workplace safety. However, before such audits are ordered or undertaken, employers should consult with counsel to determine whether it may be prudent to have such audits undertaken at the request of counsel. There may be some limited protection over audit results if the audit is conducted for the purpose of securing legal advice.
Employers may also want to consider additional and/or refresher safety training for supervisory and non-supervisory employees. Such training should improve employee sensitivity to safety issues and might also furnish evidence of employer good faith efforts in improving workplace safety. After all, some OSHA workplace safety standards explicitly require such training, often on a periodic basis.
While many employers' budgets are affected by current economic conditions, taking proactive measures such as reviewing safety policies, enhancing employee training, enforcing safety rules and conducting safety audits should generate savings in worker's compensation costs and reduce the potential for significant OSHA penalties. Most importantly, being proactive safeguards the well-being of employees.