Employers Beware: OSHA is Once Again Flexing its Enforcement Muscles

Kierston Eastham, KLJ Staff Editor

The Occupational Safety and Health Administration (“OSHA”) is known across the country by employers and employees alike as it currently oversees safety and health standards for over 130 million employees.[1] OSHA was established in 1970 under President Nixon in order to increase workplace safety and reduce employee deaths and injuries, and has reduced the number of workers killed on the job daily from about thirty-eight per day in 1970 to about twelve per day in 2010.[2] These results require extensive enforcement efforts on behalf of the agency, which has been criticized in recent years for its laxity.[3]

OSHA’s most recent regulatory agenda, however, has been described as “aggressive,”[4] especially in regards to its current key enforcement provisions. The agency implemented the severe violator enhancement program (SVEP) in 2010, which focuses on employers that “willfully and repeatedly” endanger their employees by not complying with OSHA workplace standards. These violators are subject to mandatory follow-up inspections, as well as inspections of other worksites within the same company.[5] OSHA’s penalties have also increased, with the average penalty per serious violation for 2014 being at its highest point in four years.[6] On September 11, 2014, new reporting standards were announced that require employers covered by the Occupational Safety and Health Act to report all work-related fatalities within eight hours, and all work-related hospitalizations, amputations, or the loss of an eye within twenty-four hours.[7] The new rule will take effect on January 1, 2015, and a web portal is being developed to facilitate ease for employers in fulfilling the requirements.[8] OSHA intends to hold employers more accountable by publicly posting the reported data on its website, essentially aiming to embarrass employers into compliance through what some are calling the “name-and-shame approach.”[9] One could argue that this “name-and-shame approach” will discourage employers from properly reporting in order to prevent negative information about their company being released to the public, which would ultimately frustrate the standard’s core purpose. Alternatively, this approach could be extremely effective in pushing employers to comply with OSHA standards through fear of damage to their public reputation and goodwill. This method will certainly be more budget-friendly for the agency as opposed to imposing a physical presence in the workplace through federal safety and health inspectors,[10] but whether or not this new method of enforcement will be effective remains to be seen. One expert predicts that OSHA will continue to increase inspections, impose higher penalties, and be more reluctant to reduce penalties during settlement conferences.[11] As these enforcement efforts increase, so too will the need for competent representation on behalf of employers. Although these strengthened enforcement efforts will likely lead to increased litigation for attorneys representing those employer-clients found to have violated an OSHA standard, workplaces will undoubtedly be safer for their employees. The balance between workplace safety and employer sovereignty is a delicate one, and will certainly require many more years of fine-tuning.

[1] U.S. Gov’t Accountability Office, GAO 13-61, Workplace Safety and Health: Further Steps by OSHA Would Enhance Monitoring of Enforcement and Effectiveness, at 2 (2013).

[2] Occupational Safety and Health Administration, U.S. Department of Labor, All About OSHA (2013), available at https://www.osha.gov/Publications/all_about_OSHA.pdf.

[3] Stephen Labaton, OSHA Leaves Worker Safety in Hands of Industry, N.Y. Times, April 25, 2007, available athttp://www.nytimes.com/2007/04/25/washington/25osha.html?pagewanted=all&_r=1&.

[4] Bradford T. Hammock, Occupational Safety and Health Administration’s (OSHA) Regulatory Agency Holds Surprise, The National Law Review (June 17, 2014), http://www.natlawreview.com/article/occupational-safety-and-health-administration-s-osha-regulatory-agency-holds-surpris.

[5] Occupational Safety and Health Administration, supra note 2.

[6] Tressi L. Cordaro, Occupational Safety & Health Administration (OSHA) Continues to Push Key Enforcement Initiatives, The National Law Review (March 20, 2014), http://www.natlawreview.com/article/occupational-safety-health-administration-osha-continues-to-push-key-enforcement-ini.

[7] OSHA Final Rule Requires Reporting of all Work-Related Fatalities, Certain Serious Injuries, OSHA Guide for Health Care Facilities Newsletter (Thompson Information Services), Oct. 2014.

[8] Id.

[9] Josh Eidelston, OSHA Will Put Workplace Safety Data Online as ‘Nudge’ to Employers, Bloomberg Business Week, September 18, 2014, available athttp://www.businessweek.com/articles/2014-09-18/osha-will-put-workplace-….

[10] Id.

[11] Pedro P. Forment, What Can We Expect from OSHA in the Next Four Years? 60 Fed. Law. 14, 14-15 (2013).