OSHA watch

Employers face higher fines under new enforcement policy

A potentially major increase in penalties is on the horizon with a new enforcement policy announced January 26. It significantly expands the types of violations that qualify as egregious and allows the agency to propose instance-by-instance (IBI) penalties for each high-gravity serious violation of OSHA standards specific to falls, trenching, machine guarding, respiratory protection, permit-required confined spaces, and lockout tagout. It also applies to other-than-serious violations related to recordkeeping. This will significantly increase the number of violations and resulting penalties.

According to the memorandum, "a decision to use instance-by-instance citations should normally be based on consideration of one or more of the factors listed below. The factors to be considered include:

The employer has received a willful, repeat, or failure to abate violation within the past five years where that classification is current.
The employer has failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye pursuant to the requirements of 29 CFR 1904.39.
The proposed citations are related to a fatality/catastrophe.
The proposed recordkeeping citations are related to injury or illness(es) that occurred as a result of a serious hazard."

In addition, Regional Administrators and Area Directors were reminded of their authority not to group violations and instead, cite them separately to more effectively encourage employers to comply with the intent of the OSH Act.

The new guidance covers enforcement activity in general industry, agriculture, maritime, and construction industries, and becomes effective 60 days from Jan. 26, 2023. The current policy has been in place since 1990 and applies only to egregious willful citations.

Cost-of-living hikes for violations in effect

Based on the annual cost-of-living adjustment for 2023, the increase for willful and repeat federal violations increased to $156,259 from $145,027 in fiscal year 2022. The minimum fine for a willful violation is $11,162 - up from $10,360. The maximum fine for serious, other-than-serious, failure-to-correct, and posting-requirement violations increases to $15,625 from $14,502.

These penalties were effective January 17 and apply to all open inspections. (For more information see The ABCs of OSHA violations: increased penalties, new enforcement policy, and when to contest)

Reminder: Injury reporting data for certain establishments due March 2; Feb 1 was deadline for posting Form 300A

March 2 is the deadline for establishments with 250 or more employees that are currently required to keep injury and illness records, and establishments with 20-249 employees that are classified in certain industries with historically high rates of occupational injuries and illnesses to submit the Form 300A electronically to OSHA, using the Injury Tracking Application (ITA).

The annual summary of injuries and illnesses recorded on OSHA Form 300A, Summary of Work-Related Injuries and Illnesses, must be posted where notices are customarily located in workplaces, between February 1 and April 30. (For more information, see Archives - Articles - January 2023 - OSHA recordkeeping deadlines looming: five reasons to get it right.)

Combustible Dust National Emphasis Program revised

The revised program sets forth a new approach for locating and inspecting subject establishments. The following industries were added to the program because they had a higher likelihood of having combustible dust hazards or experienced combustible dust-related fatalities/catastrophes:

311812 - Commercial Bakeries
325910 - Printing Ink Manufacturing
321912 - Cut Stock, Resawing Lumber, and Planning
316110 - Leather and Hide Tanning and Finishing
321214 - Truss Manufacturing
424510 - Grain and Field Bean Merchant Wholesalers

Fall 2022 regulatory agenda: change in injury reporting moves to final stage and more

The regulation to change which workplaces are required to submit annual injury and illness data could appear as soon as March, according to the Department of Labor's Fall 2022 regulatory agenda. Other potential regulations listed in the final rule stage include the standard on COVID-19 in health care settings, which is under final review by OIRA, Procedures for the Use of Administrative Subpoenas, and an update to the Hazard Communication Standard.

A somewhat surprising addition was a new proposed rule that revisits a 2013 Interpretation Letter regarding the Worker Walkaround Representative Designation Process, which was withdrawn in 2017 after legal challenges. A Notice of Proposed Rulemaking (NPRM) is slated for May 2023 that would clarify the process of designating a worker representative during an OSHA inspection or facility walkaround "regardless of whether the representative is an employee of the employer, if in the judgment of the compliance safety and health officer such person is reasonably necessary to an effective and thorough physical inspection."

Other Biden administration priorities include:

Heat Illness Prevention in Outdoor and Indoor Work Setting - prerule
Workplace Violence in Health Care and Social Assistance - prerule
Process Safety Management and Prevention of Major Chemical Accidents - prerule
Blood Lead Level for Medical Removal - prerule
Infectious Disease - proposed rule
Emergency response - proposed rule

An NPRM is expected in July 2023 for the long-awaited Lock Out/Tag Out update.

Other Department of Labor (DOL) items that have been of concern to employers are:

Updating Davis-Bacon Regulations - A final rule is slated for February 2023. The March 2022 NPRM proposed undoing most of the 1982 modifications made by the Reagan administration while making more than 50 significant changes to Davis-Bacon Act (DBA) enforcement. Many government construction contractors and industry groups filed comments expressing concern this return to policies of the 1970s would inflate wages and exacerbate current inflation.
Employee or Independent Contractor Classification - Proposes rescinding a 2021 rule that made it easier for employers to classify workers as independent contractors. A final rule is slated for May 2023.

Budget increase directed to enforcement

The FY 2023 budget will be $632.3 million, an increase of about $20 million, or 3.3 percent from FY 2022. Federal enforcement and state programs will get the bulk of the increase.

Annual National Safety Stand-Down to Prevent Falls in Construction

The 10th annual National Safety Stand-Down to Prevent Falls in Construction is slated for May 1-5. The website highlights past events and how workplaces can participate.

New FatalFacts bulletin

A new FactalFacts bulletin describes how a worker's death resulted from the release of hydrogen sulfide and what could have been done to prevent it.

Florida enforcement resumes in 18 counties affected by Hurricane Ian

Normal enforcement has resumed throughout Florida after most programmed enforcement actions were suspended in the hurricane's aftermath.

State Plans - MIOSHA

Instructions issued

Mental Health in the Workplace webinar series launched

The first webinar in a monthly series about the importance of investing in mental health to build stronger, more resilient workplaces can be viewed here. The state also recently launched Michigan.gov/WorkplaceMentalHealth, a centralized hub to share resources and strategies aimed at helping employees and employers across the state address mental health in the workplace.

Recent fines and awards

Florida, Illinois, New York

In the largest enforcement effort on ergonomics, three Amazon warehouses were inspected in Deltona, Florida, Waukegan, Illinois, and New Windsor, New York. Amazon was cited for violations of the General Duty Clause, has received hazard alert letters, and faces proposed penalties of $60,269. In addition to the ergonomic hazards, the company was cited for exposing workers at the Florida warehouse to struck-by hazards. Similar investigations at three Amazon locations in Aurora, Colorado, Nampa, Idaho, and Castleton, New York, are ongoing.

Florida

Dollar General Corp. and Dolgencorp LLC have again been cited for exposing workers to unsafe conditions, this time at two store locations in Middleburg and Green Cove Springs. Citations were issued for two repeat violations - merchandise blocking exit routes and exposing workers to fire and entrapment hazards. Proposed penalties are $196,438.

Massachusetts

Eversource Energy Service Co., a major New England electricity provider, was cited for two willful and three serious violations after an investigation of an arc flash and arc blast in Boston's Beacon Hill neighborhood that led to a worker's death. Inspectors said the company failed to fully de-energize the electrical equipment during maintenance work, failed to reasonably estimate the heat energy employees would have been exposed to, and failed to train workers on electrical equipment hazards in enclosed spaces. The proposed penalties are $333,560.

Tennessee

The U.S. Postal Service was cited for exposing workers to struck-by, electrical, crushing, fire, and other health hazards at facilities in Columbia, Knoxville, and Nashville. The mail carrier faces $350,136 in proposed penalties for five repeat, four serious, and four other-than-serious violations.

Wisconsin

Briess Industries of Chilton which supplies malt barley to major craft breweries, home breweries, and other spirit and food production in the Midwest was inspected in response to a complaint of unsafe work conditions. Inspectors found workers exposed to machine, respiratory protection, confined space, and other hazards and issued two repeat and 14 serious safety and health violations, with proposed penalties of $174,351.

Whistleblower

American Airlines Inc. was found to have retaliated against employees who filed complaints about illnesses caused by toxic fumes entering aircraft cabins with the company and Federal Aviation Administration. Flight attendants alleged the airline docked attendance points and discouraged them from reporting work-related injuries and illnesses. The proposed fine is $6,837.

For more information