OHSA Fines Likely to Increase in 2016

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In 1970, Congress passed the Occupational Safety and Health Act. This legislation was designed to protect the rights and safety of workers by preventing workplace injuries and death and holding employers accountable for workplace injuries. The enforcement arm of the Act became known as the Occupational Health and Safety Administration “OSHA”. OSHA is now under the auspices of the U.S. Department of Labor.

There is a strict set of federal safety standards to which all businesses must adhere. These regulations cover things like disposal of hazardous materials, required personal safety equipment such as safety goggles, permitted noise levels and fall protection. OSHA inspects workplaces to ensure they’re following all regulations to reduce chances of accident or injury.

As any employer who has ever received notice of an OSHA investigation knows, an OSHA investigation and the ensuing response, including document gathering, fact finding, explanations, position statements, preliminary hearings, formal hearings, and appeals can be a time consuming and disruptive event. Although OSHA has the ability to levy fines for violations of safety measures, these fines have failed to provide effective disincentives for employers to comply with workplace safety regulations. Over the past 25 years, OSHA’s maximum, penalties have remained stationary. All of that is about to change and employers need to be aware of what’s coming.

There are generally four (4) categories of OSHA violations: (1) Willful; (2) Repeat; (3) Serious; and (4) Other Than Serious. For each of these violations, the maximum civil penalties for a violation are as follows:

Willful: $70,000.00

Repeat: $70,000.00

Serious: $7,000.00

Other than Serious: $7,000.00

During an investigation, OSHA routinely assigns a “point value” to each violation. The higher the point value, the closer to the maximum penalty that may be levied against and employer for a violation. It is not uncommon for OSHA to stack multiple violations together so as to reach a higher point value and thereby increase the total amount of the fine it seeks to place on an employer.

When Congress passed the stopgap budget in November of 2015, there was a little noticed section which gave OSHA the authority to adjust the civil penalties it can levy against employers for non-compliance with safety regulations. Beginning in August of 2016, OSHA may adjust its civil penalties by up to 82% higher. What this means is that violations that were once classified as “Willful” or “Repeat” may sting an employer up to $127,400!

In order to be prepared, employers should invest in a proactive approach. This should include the retention, along with counsel, of a third party, independent safety consultant to conduct a comprehensive examination of the employer’s work-site. Employers should also take steps to educate their managers and supervisors before an inspection occurs on what to expect and do, and what rights an employer has during an OSHA inspection. Bear in mind that the actions or statements of individual managers or supervisors can be binding upon an employer during an OSHA investigation.

It is unknown whether the increased fines will act as a meaningful deterrent to employers that place workers at risk by failing to inspect and maintain safe and healthy workplaces. One thing is certain however, employers can expect a greater uptick in OSHA investigations beginning in the second half of 2016. Be prepared ahead of time!

With over 30 years’ experience in advising employers and employees on workplace issues, such as forced labor, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the ever evolving employment law landscape. Call Bill Boznos today at (630) 375-1958 or contact us at www.boznoslawoffice.com/contact-us through our website at www.boznoslawoffice.com



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