OSHA: 2018 enforcement facts and what to watch for in 2019

What happened in 2018

A recent webinar by Conn Maciel Carey L.L.P., a Washington-based law firm, took a look at OSHA enforcement action in 2018 with surprising results:

• Despite expectations that many of the enforcement programs would be retired, the agency continues to implement the same number of enforcement emphasis programs as were implemented at the end of the Obama administration (150 local and regional programs and nine national)
• There was a $5M increase in the FY 2019 budget and state OSH programs received a $2M increase, the first since FY14, rather than the expected budget cuts
• Still no Assistant Secretary of Labor for OSHA (longest ever vacancy)
• Statutory requirement to increase penalties annually remains in place
• Number of inspections was similar to FY2017, and larger than FY16, the last year of the Obama administration - 32,202
• Total violations issued was slightly lower than FY 2017 - 52,141 - and about 12% lower than FY16
• A high percentage of inspections result in the issuance of violations - 28%. This has been relatively stable over the past eight years, indicating it is very difficult to have a clean OSHA inspection
• The average penalty per serious violation increased significantly - 37.6% to $5,016
• Although the number of $100,000+ penalty cases dropped from the record-setting 218 in FY17, there were 168 in FY 2018. This is still one of the top five years of $100,000+ enforcement actions
• The heavy use of repeat violations has continued, with 5.1% of all violations in this category. The percentage has been over 5% since FY2016
• A 2016 site-specific targeting inspection plan offers insights on how OSHA will use the 300A injury data collected under the new e-recordkeeping rule. Establishments with elevated DART rates and those that did not submit the required data are the primary targets, but others can be inspected
• There has been continued expansion of the general duty clause to cite employers for heat stress, ergonomics, workplace violence, and chemical exposures below PEL
• A May 2018 memo formalized the use drones to collect evidence, including the requirement that the agency obtain employers' consent. Some fear the use of drones has the potential to expand OSHA's violation-finding capabilities during any inspection and that the guidelines are too vague

Significant case decisions

• The Obama administration expanded the "look-back" period, which is the basis of repeat violations to five years from the three years that was in the field operations manual. In Triumph Construction vs. Sec of Labor, the court found that OSHA is not bound by any look-back period since it is not in the statute or the regulations. Although the five-year period is still in the manual, legally there can be an indefinite look-back period.
• The ability of OSHA to expand an unprogrammed injury inspection (based on a reported hospitalization) to a wall-to-wall inspection was addressed in U.S. v. Mar-Jac Poultry. The 11th Circuit court rejected the warrant to inspect the facility based on the injuries recorded on the 300 log, which it found did not establish reasonable suspicion of violations.
• OSHA successfully defended the legality of its multi-employer policy and ability to cite a general contractor as a "controlling employer" in Acosta vs. Hensel Phelps.
• Under the Obama administration, there was an effort to expand "per day" violations, which a grain handler challenged. The OSHRC ALJ granted Summary Judgment to the employer, noting per day penalties are inconsistent with the statute except when regulation language is clear such as for failure to abate.
• EPA tried to delay the implementation of the EPA's RMP amendments that were made in the final hours of the Obama administration, but the court found the delay rule unlawful.

What's happened in 2019?

• OSHA was fully funded so its enforcement activities were not affected by the government shutdown
• There was a delay in the annual increase in penalties because the Federal Register was shut down, but the increase is in place now (see OSHA Watch below)
• Scott Mugno was re-nominated for Assistant Secretary of Labor for OSHA on January 16
• A final rule on electronic recordkeeping eliminates the requirement for large and certain high-risk establishments to annually submit 300 logs and 301 incident reports. The establishments are still required to electronically submit information Form 300A and to submit their employer identification number

What's expected

• Further amendments to beryllium standard
• Final rule to remove critical language of "unexpected energization" from Lockout Tagout standard
• Hazard Communication standard revisions to align with the current version of Globally Harmonized System of Classification and Labeling (GHS)
• Possible changes to Table 1 of the new Silica rule
• Further challenges to electronic recordkeeping

Takeaway: To date, there has not been the pullback on enforcement that was expected under the Trump administration. It remains aggressive and citations are more expensive. If a company is inspected there is only a one in four chance that it will not receive a citation. Forward-thinking companies are vigilant about compliance.