It is no secret that OSHA’s bark is often worse than its bite.
Despite a massive growth in the number of American workplaces, a Bush Administration emphasis on voluntary programs produced a shrunken OSHA enforcement budget. Meanwhile, inflation rendered OSHA’s typical fines increasingly inconsequential.
The workplace catastrophes of recent years – the crane collapse and Las Vegas deaths of 2008 and this year’s mine, chemical and oil disasters – are indictments of a lax enforcement climate.
While OSHA is unlikely to ever have enough resources to regularly inspect all American workplaces, it can adjust its enforcement agenda to achieve wider results, even within its present budget. That, apparently, is the intention of Secretary of Labor Hilda L. Solis who, last month, announced a regulatory crack-down.
Working along four lines, OSHA will:
- Increase scrutiny of state OSH agencies;
- Deploy more inspectors;
- Increase penalties; and
- Target the nation’s worst offenders.
“OSHA’s actions will help level the playing field between LIUNA signatory contractors – who consistently put worker safety and health first – and those who do not,” says LIUNA General President Terence M. O’Sullivan. “By making an example of the worst offenders, OSHA’s enforcement should encourage all contractors to bolster those aspects of their safety and health programs that may be lagging behind established standards.”
Expected to replace OSHA’s Enhanced Enforcement Program (EEP) before summer is over, the Severe Violator Enforcement Program (SVEP) targets employers who willfully and repeatedly cut corners in health and safety or, when cited, fail to abate violations. SVEP concentrates on high-emphasis hazards with high gravity serious violations. The construction fall protection standard is in this category. Crystalline silica, lead and excavation/trenching – some of the hazards that already receive extra attention through OSHA’s National Emphasis Program (NEP) – are also on SVEP’s list.
Moreover, while employers previously caught a break from OSHA if they had a clean record going back three years, their records must be clean for five years to be given a break under SVEP. OSHA will also be publishing the names of these companies on its website to shine a light on them and their practices.
Violators are subject to mandatory follow-ups, not only at the place where the infraction was found, but also at related workplaces, nationwide. State OSHAs will receive referrals, and scofflaws will be scrutinized by state authorities as well.
Contractors will see the price of indifference climbing. Penalty discounts granted for small employers, acting in good faith or having a clean record are being reduced. As a result, penalties for serious violations currently averaging $1,000 will rise to between $3,000 and $4,000. Instead of being grouped or combined, violations can carry “each-instance” fines; 50 workers without hardhats can mean 50 separate fines.
In 1970, OSHA had one inspector for every 30,000 workplaces; today, the ratio is one per 60,000. This decline in capacity is one reason unscrupulous employers find room to ignore OSHA regulations. In order to press employers to pay proper attention to safety and health, OSHA has shifted money to put 350 more inspectors in the field.
Increased Federal OSHA Supervision of State OSHAs
Stemming from the rash of construction-related deaths in Las Vegas in 2008, OSHA is stepping up oversight of workplace safety agencies in states that run their own programs. Nevada is one such state. OSHA recently completed a comprehensive review of Nevada’s program with recommendations that the state has pledged to adopt. Other states are now under the microscope. The agency is also seeking ways to gain more NEP participation from states that have a high percentage of industries and hazards targeted by the NEP.
“The thought behind all of these changes is that the cost of noncompliance must be higher,” says O’Sullivan, noting that Solis and OSHA officials also back provisions of the Protecting America’s Workers Act which would increase penalties even further. “When the price for cutting corners is heftier than the expense of maintaining safe workplaces, unscrupulous employers will have reasons to stop jeopardizing their employees’ lives.”
[Janet Lubman Rathner]