O&MM Fabricator - July/August 2016 - (Page 37)
OSHA to Sharply Increase Fines
Time to Become a Safety Expert
thought of a visit from the Occupational, Safety
and Health Administration (OSHA) is one of
the last things on their minds.
In the last decade or so, for those who have
had such a visit that resulted in a penalty, in
many cases, for those who have been visited
and cited, the relatively low amount of the
penalty has almost been considered a cost
of business. OSHA has not increased its fines
On the other hand, the Bipartisan Budget
Act of 2015, signed by President Obama in
November, requires that OSHA catch up to
the 21st Century by increasing fines based
on the percentage that the Consumer Price
Index, which has increased since October
1990. That means an approximately 80 percent
increase in fines.
The Act requires OSHA to publish the
adjusted penalties by July 1, 2016. The new
rates will become effective no later than
The differences are dramatic. In the past,
the penalty for a serious violation was $7,000.
A repeat or willful violation was $70,000. An
80 percent increase brings those penalties
to $12,600 and $126,000, respectively. Note
that those fines are per occurrence, not per
In addition, the Budget Act requires OSHA
to make an annual adjustment to its penalties,
based on inflationary increases to the Consumer
Price Index every October. They will publish
these adjusted penalties by January 15 each
year. The next increase will be published
"OSHA is really relying on these enhanced
penalty provisions as an aid to enforcement,"
says Valerie Butera, a member of the labor and
employment group at Epstein Becker Green, a
national law firm with a focus on employment,
labor and workforce management.
FOR MANY SMALL BUSINESS
What Should a Business Do?
* Ensure that your employees are safe.
Re-evaluate all your safety practices and
"People don't want to think about this,"
Butera says. But health and safety standards
may well have changed since your employees were trained. For example, the Hazard
Communication Standard, which involves the
classification of chemicals and hazard information on labels and safety data sheets, was
updated as recently as 2012.
"Hazcom is frequently cited, so be sure that
is up-to-date," she adds.
* Employees should know what to do if a compliance officer comes to the door.
Employees should not only be trained, but
be able to show they have an understanding
of that training.
"Every case I've had has involved some kind
of training citation," Butera says. "If OSHA
walks in, employees need to demonstrate that
they were trained and could demonstrate that
training of whatever safety practices are relative to their job."
Simply going over safety with employees is
not enough. You need to be able to prove that
they understand it.
"Document everything and keep it," Butera
says. "One way to beat a training citation is to
have a comprehensive quiz at the end of the
training. In some companies, employees have
to re-take the test until they get 100 percent."
That way, even if an employee is tonguetied or shy in front of a compliance officer, an
employer can prove that the employee does
understand the practice.
* Consider bringing in a professional to evaluate your practices and training.
Butera points out that if you use a law firm
for this kind of analysis, the records of it are
protected by attorney-client privilege.
* Understand that OSHA differentiates
between a violation and a willful or repeat
* Don't assume OSHA is after you.
July/August 2016 * O&MM Fabricator | 37
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O&MM Fabricator - July/August 2016