OSHA Compliance and Enforcement Go Beyond Safety Regulations

, New York Law Journal

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The Occupational Safety and Health Act of 1970 (29 U.S.C. §651, et seq.) hasn't changed much in 40 years. Although there have been sparse statutory amendments, the Occupational Safety and Health Administration (OSHA) has promulgated a vast body of safety and health regulations, and the agency has regularly enhanced and refined its enforcement tactics.

As OSHA matures into its forties, it is broadening its safety vision by incorporating non-regulatory guidance as a component of its enforcement practices. Among other things, OSHA is delving into safety issues that arise from contemporary lifestyle and a faster-paced business environment. It regularly issues warnings of potential General Duty Clause1 violations for failure to recognize and protect against certain safety risks that OSHA has identified, even though OSHA has not adopted a specific governing safety regulation. All of this means greater exposure to employers, a need to be more vigilant in recognizing safety and health hazards, and prompt discipline of employees who fail to comply with workplace safety rules and training.

Enforcement Approach

OSHA's modern approach to enforcement tends to be methodical, calculated, and self-publicized. The agency sets the groundwork for future enforcement activities well in advance of the time employers ultimately feel the impact. OSHA is now building upon its established base of safety regulations to set the stage for and undertake a more aggressive enforcement campaign, particularly with respect to Repeat violations, high hazard work, and efforts to make examples of large businesses that operate multiple stores or facilities.

Two years ago, on Oct. 1, 2010, OSHA put into effect several "administrative" changes that ratchet up the exposure and long-term consequences to employers who commit OSHA violations. Section 17 of the Occupational Safety and Health Act, last amended in 1990, details minimum and maximum statutory penalties for various types of OSHA violations, but contemplates an exercise of discretion in fashioning the amount depending upon the circumstances. Section 17(j) identifies adjustment factors to be considered, including "due consideration to the appropriateness of the penalty with respect to the size of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations."2 While OSHA still utilizes those factors in formulating penalties, it has modified some of the criteria underlying them and changed the calculus by which they are totaled.3 The net result in most cases is a significant increase in the proposed penalty for any given violation, all else being equal, which is further compounded by the number of overall violations.

Coupled with changes to the penalty calculations, OSHA also modified its "look back" period from three to five years for purposes of both the penalty adjustment credit associated with a clean OSHA citation history and for issuance of Repeat violations.4 And for good measure, OSHA added a new 10 percent penalty upcharge if the employer history includes a high gravity Serious, Willful, or Repeat violation.

OSHA also cancelled its prior Enhanced Enforcement Program in 2010. The agency replaced it with the Severe Violator Enforcement Program,5 which targets High-Emphasis Hazards6 and focuses on employers who have committed Willful, Repeat, and Failure-to-Abate violations. The Area Office is charged with the responsibility to actively track, monitor, and target severe violators. A variety of tactics are available to accomplish this, including mandatory follow-up inspections to verify abatement and compliance, enhanced settlement provisions, corporate awareness (e.g., letters to executives, news releases, notices to headquarters), corporate-wide agreements, national referrals, and direct federal court enforcement of settlements. OSHA is also implementing a Severe Violator database to facilitate the tracking and monitoring process, which should come online by the end of OSHA's 2013 fiscal year.7 The message: OSHA will hound those employers who meet the Severe Violator criteria.

To facilitate these enforcement efforts, OSHA increased its corps of Compliance Safety and Health Officers (CSHOs). Over 100 new CSHO positions were budgeted for 2010-2011, with 25 more in 2012. OSHA's FY 2013 budget acknowledges that it is only now in 2012 that full deployment of these new CSHOs is being realized as they complete their technical training.8

With more CSHOs entering the field and gaining experience, employers should expect to more readily see the impact of the 2010 changes in 2012-2013. Statistical information on the issuance of Repeat violations over 2011-2012 is not yet available. Anecdotally and experientially, however, it seems Repeats are on the rise. OSHA has also already started to become more heavy-handed with issuing and publicizing the Repeat violations it issued, particularly with respect to large corporations where the employer was found to have committed prior similar violations at other plants, facilities, or stores.

For example, OSHA issued four citations and proposed penalties of $365,000 to Walmart in January 2012 following an inspection of a Rochester store. The ten alleged Repeat violations, which accounted for $288,000 of the proposed penalties, were based on a broad panoply of previous violations stemming from inspections of stores in at least nine different states in 2008-2010. A few months later, an inspection of a Cobleskill Walmart netted three more Repeats borne out of violations found at stores in five other states, tacking on another $48,200 in proposed fines. In May 2012, a Rite Aid store in Brooklyn received citations that included three Repeat violations for alleged unstable stacking of merchandise, partially blocked exits, and missing railings. The Repeats, which OSHA assessed at $104,500, were predicated on final Orders entered against two of Rite Aid's upstate stores in 2007 and 2008.

A few other large manufacturers across New York State also underwent process safety management inspections in 2011-2012 that culminated with issuance of multiple Repeat violations and six-figure penalties to several of them. The Repeats were likewise grounded in similar violations found during prior inspections conducted at other company-operated facilities both within and outside New York State. Walmart, Rite Aid, and several other hard-hit companies have contested the violations and proposed penalties.

Significance

The obvious message underlying such enforcement is increased corporate accountability for safety on a massively broad scale. OSHA is setting examples by flexing its enforcement muscle with Repeats against corporate behemoths, and the agency is getting their attention. But it is more than that. From an employer's point of view there is an overwhelming unfairness to the new Repeat criteria, but many employers are unwilling or financially unable to battle the agency on these issues. Big corporate is perceived as having the money to challenge the rules and fight for principle, and if OSHA can bend or break the giants, what does that say to small and mid-sized employers? For these reasons, the ultimate outcome of early challenges to the new Repeat criteria will have significance to OSHA as well as any employer with a prior OSHA history.

Regardless of how, when, or if that battle is fought to conclusion, employers are well advised in the present to evaluate—as part of ongoing compliance efforts—their own prior OSHA history and that of any facility, store, or business operated through the same corporate management. This is particularly true for those employers who are likely to be the subject of programmed inspections under any of the National or Local Emphasis Programs, employers who are at risk of being classified as a Severe Violator based on the type and nature of past violations, and employers who have higher than average DART (Days Away Restricted and Transfer) or DAFWII (Days Away From Work Injury and Illness) rates. Each year in March, OSHA publishes a list of approximately 14,000 to 15,000 non-construction employers whose DART rate exceeds the national average by a certain amount. The agency issues letters to these employers advising that their DART rates exceed the national average.9 A subset of about 2,500 of these employers (i.e., those whose rates exceed a selected threshold in particular industry classifications) are selected for inclusion in the agency's annual Site Specific Targeting inspection program.

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