OSHA workplace safety enforcement has had a difficult time of late. A spate of deregulation and depleted personnel due to the coronavirus pandemic have taken a toll on their safety enforcement, thus making the process more difficult. Also, the pandemic has shut down a large number of workplaces, and that makes discovering problems more difficult. Now, though, with more and more businesses trying to reopen, this might be a good time to look at OSHA and its effect on overall workplace safety.
This will actually be the first in a series of articles on this blog dealing with workplace safety and its importance to every employer in San Antonio, Bexar County, the state of Texas and beyond. The most important thing every employer should believe is essential is that every business owner who has employees is under a national mandate to create a working environment that is as safe as possible for everyone, regardless of the inherent risk in a job. Any employer who fails in that mission faces a lot of potential risks, most of which can be troublesome for their profit picture.
The Risk is High for Not Keeping Workers Safe
That level of risk is high and it refers a lot more than the potential loss of workers who are injured or killed on the job, but also a significant hit to their reputation – after all, no one wants to work anywhere that is unsafe, and many stockholders dislike negative publicity of any kind – as well as heavy fines that could make a serious dent in their annual profits.
In addition to fines, non-compliant business owners and other employers throughout San Antonio, Bexar County, and the state of Texas may also face potential criminal liability. When these things happen, businesses often suffer additional public humiliation and PR nightmares when OSHA issues press releases that get published and written about in local newspapers, trade journals, and online for the local community, competitors, and, worst of all, potential customers to consume.
If that wasn’t enough, at least twice in the last five years, Congress has bumped up fines and criminal penalties. The last time they rose by nearly 80 percent. All of this demonstrates why all employers and business owners should keep track of the trends in OSHA enforcement, and be aware of the violations most commonly cited in Texas and locally.
After Coronavirus, Employers Should Beware
The first thing to know is that the numbers of OSHA enforcement inspections have been rising consistently for more than a decade, so even if they’re down because of the pandemic, they are likely to rise whenever we approach “normal.”. As of 2019, the number of OSHA “Significant Enforcement Cases” (which is how they refer to a single inspection resulting in total fines of more than $100,000) has more than doubled since 2008. The second thing to know is that as many as 75 percent of inspections in some sectors lead to fines, and such violations and fines are more common and more punitive among those employers who don’t have a full-time health and safety manager.
Also, it is good to know that the average enforcement brings a fine or fines of between $15,000 and $50,000, although, as we noted, many cases draw fines in excess of $100,000. Keep in mind, too, that OSHA doesn’t warn you before an inspection; they just show up. It’s not even necessary for a complaint tp be filed, although about one-in-every-four (23 percent) inspections is triggered by a worker complaint. Also, OSHA is currently paying increased attention to whistleblower complaints.
How Employers Trigger An OSHA Inspection
One of the most common devices OSHA uses to decide who deserves an inspection comes when a company’s workplace scores a high DART score (Days Away, Restricted, Transfer). Such a statistic often leads to workplaces and employers to be added to the agency’s “SST” (Site-Specific Targeting) Program,” which means they are specially targeted for inspections. In most cases, such inspections are “comprehensive” in scope, so they will scrutinize every aspect of a company’s workplace safety structure. That means they will look at all policies, procedures, employee training records, and how well a workplace complies with record-keeping requirements. All that is in addition to examining any potential physical hazards on the shop floor. It should surprise few that comprehensive inspections tend to draw the most violations largest fines.
In addition to the “Site-Specific Targeting Program,” OSHA also has a series of National Emphasis Programs (NEPs), in which they continually identify high-hazard industries and specific hazards and target them for comprehensive inspections. Examples of current NEPs operating in Texas include some that impact manufacturers, as well as some that are focused on Fall Protection, Steel Fabricators, and Noise hazards.
What Do the Various OSHA Citation Types Mean?
- Willful: A willful violation is defined under OSHA law as a violation in which the employer either knowingly failed to comply with a legal requirement (purposeful disregard) or acted in a way indicating significant indifference to employee safety.
- Serious: A serious violation is one in which the workplace hazard could cause an accident or illness that would most likely result in death or serious physical harm, unless the employer did not know or could not have known of the violation. This is the most common type of citation.
- Other-Than-Serious: A violation is classified as “other-than-serious” when the violation has a direct relationship to workplace safety and health but is not serious in nature.
- Repeat: A company may be cited for a repeated violation if the company has been cited previously for the same or a substantially similar condition and if, for a serious violation, OSHA’s region-wide inspection history for the agency lists a previous OSHA Notice issued within the past five years; or, for an other-than-serious violation, the establishment being inspected received a previous OSHA Notice issued within the past five years.
Potential Personal Criminal Liability for Business Owners
Most business owners and other employers understand that violating OSHA regulations can lead to civil penalties that could impact their bottom line, even if they don’t lead to an employee’s injury and loss to the employer for a significant period of time, or there is no significant court settlement as a result of a worker’s injury lawsuit. What many don’t seem to understand, however, is the potential criminal liability associated with failing to keep workers as safe as possible.
If an employer is investigated by OSHA and is convicted of a willful violation of an OSHA standard, and that violation has caused the death of an employee, the offense is punishable by a court-imposed fine of up to $250,000 for an individual, as well as up to 6 months in jail. For a corporation, the fine can be up to $500,000.