Safety and OSHA News

OSHA updates inspections manual: What it means for employers

This updated document is for OSHA inspectors, but it can provide a lot of info to businesses, too. 

As of Oct. 1, 2015, OSHA inspectors are following a new Field Operations Manual (FOM).

Its purpose, as laid out on the manual’s cover page:

“To provide OSHA offices, State Plan programs and federal agencies with policy and procedures concerning the enforcement of occupational safety and health standards. Also, this instruction provides current information and ensures occupational safety and health standards are enforced with uniformity.”

Here are some key sections in the 280-page document:

Workplace violence

OSHA said recently it will give more attention to inspections that involve workplace violence. Industries that are more susceptible to this hazard should take note of this in the FOM:

“If the employer is in an industry OSHA has identified as a high risk for workplace violence (such as late-night retail, social service and healthcare settings, and correctional facilities) the [inspector] should inquire about the existence of a workplace violence prevention program.”

The inspector will use the prevention program to determine whether workplace violence hazards have been reduced or eliminated.

Incentive programs

OSHA inspectors will look to see whether any incentive or punitive programs have caused a company to miss reporting worker injuries.

Such omissions can be violations of OSHA’s recordkeeping regulations.

Repeat violations

OSHA uses the FOM to reiterate a policy it revised within the last several years regarding what constitutes a repeat violation.

A citation will be given repeat status if:

  • it was issued within five years of the final order date of a previous, similar citation or within five years of the final abatement date, which ever is later, or
  • the previous citation was contested within five years of the OS&H Review Commission’s final order of the U.S. Court of Appeals’ final mandate.

Before OSHA changed the policy, a repeat violation had to be within three years’ of a previous, similar one.

Penalty adjustment factors

OSHA fines for serious and other-than-serious violations vary depending on the employer’s number of employees, good faith safety efforts and history of previous violations (all of these reductions are not mandatory, and the amounts listed are maximum reductions):

  • 10% reduction for history
  • 25% for good faith, and
  • 60% for businesses with 1-25 employees; 30% for 26-100 employees; 10% for 101-250 employees; no size reduction available for companies with 251 or more employees.

Companies can also receive an additional 15% reduction for fixing violations quickly.

For willful violations, there is no reduction for good faith, and the fine amount can’t drop below $5,000. The reduction factor for history is the same as a serious violation. The reduction for company size can be up to 80%, and employers with up to 250 workers are eligible.

For failure-to-abate violations, only the size reduction can be applied. Failure-to-abate violations can be multiplied by the number of days a violation is unabated, with the maximum not to exceed 30 times the initial amount.

Inspectors also have violation-by-violation (aka egregious) penalties at their disposal. Each instance of noncompliance can be considered a separate violation.

Criminal penalties

Criminal charges in connection with worker fatalities are still rare, but the current OSHA administration has made no bones about the fact that it includes the possibility of criminal penalties when investigating pages.

The FOM lays out how this process takes place:

  • “The circumstances surrounding all occupationally-related fatalities will be evaluated to determine whether the fatality was caused by a willful violation of a standard, thus creating the basis for a possible criminal referral.”
  • The decision whether to refer a violation for possible criminal prosecution will be based on evidence that a violation contributed to the death; the employer was aware of the requirements of the OSHA standard and either knew it was in violation or was plainly indifferent to employee safety.

OSHA can also refer cases to other agencies, such as EPA, which might seek criminal penalties under their statutes. Criminal penalties are available for violation of:

  • The Clean Water Act
  • The Clean Air Act
  • The Resource Recovery and Conservation Act (RCRA), and
  • The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, aka the Superfund).

Safety violations can also be criminally prosecuted for actions such as conspiracy, making false statements, fraud, obstruction of justice or falsification of records during a federal investigation.

While all of the above pertain, one way or another, to OSHA rules, companies have been known to come up with some, shall we say, “interesting” rules of their own. For more about that, click here for 7 Workplace rules that border on the ridiculous.

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