In a recent case OSHA sought abatement of safety violations at the company’s 170 locations nationwide, even though most of those sites were not inspected or even visited by OSHA regulators. This suggests that contractors may face penalties at numerous jobsites even if no safety complaint is ever raised.
While it is true that federal courts have generally limited OSHA’s information demands to those reasonably necessary to determine the subject matter of the complaint, OSHA continues to try to expand investigations into areas not covered by the complaint. Last October OSHA issued a policy guideline encouraging inspectors to look at broad-based safety compliance regardless of the complaint or reason for the inspection. This guidance was limited to the poultry processing industry, but one can easily see it expanding to other industries. As a practical matter, limiting the inspector’s scope of inquiry may be very difficult to do short of litigating the matter, which is expensive and time-consuming.
Penalties for health and safety violations have not increased since 1990. That has changed now. Effective August 1, 2016, OSHA will implement a 78 percent increase in the penalty structure and in future years penalty amounts will be tied to the cost of living index. Just to put numbers out there: the penalty for a serious OSHA violation will increase from $7,000 to $12,744. For repeat and/or willful violators, the maximum penalty will increase from $70,000 to $125,438. True, OSHA can impose a lesser penalty, but that requires bureaucratic cooperation and proof the maximum penalty would have a significant economic or social cost.
OSHA’s record keeping and reporting rules have recently changed also. Now, the rules specifically state any policy the employer has that requires employees to report accidents or injuries must be reasonable and must assure employees of non-retaliation. Although the statute itself prohibits retaliation against an employee who files a complaint, OSHA was previously powerless to do anything unless the employee complained of retaliation. Now, however, OSHA can penalize an employer on its own without an employee complaint. It remains to be seen how this new rule will affect employee discipline, post-incident drug testing, and safety incentive programs. OSHA has stated that employers cannot use these programs to deter or deflect safety complaints.
You probably should quickly reduce your plan to a written form so that you can prove you were in compliance by the deadline. Also, the rule requires contractors to inform employees about the new procedure, telling them specifically that they have the right to report work-related accidents and injuries and that the employer will not retaliate against them for so reporting. Again, you should document that each employee received this “training.”
Employers with 250 workers must submit information from the OSHA 300 logs, 300A Summaries, and the 301 Injury and Illness Incident Reports electronically. This will be phased in so that only the 300A Summaries must be electronically submitted by July 1, 2017. The remaining forms will be submitted electronically by July 1, 2018. Contractors with 20 to 249 employees must electronically report their 2016 OSHA 300A summaries by July 1, 2017. In 2019, the reporting deadline will change to March 2. OSHA will post this data on an Internet site, presumably after redacting privacy details.
In addition to these rule making efforts, OSHA is taking a more proactive role publicizing advice and guidance to employers. For example, the agency recently conducted a webinar on the safety hazards of heat and lightning. Since nearly all contractors are working outdoors, your employees are especially at risk. OSHA maintains that lightning and heat are occupational hazards and that employers have a duty to protect their workers. Contractors need to be wary of lightning, storm and high winds risks and special OSHA rules regarding work from scaffolding, use of crane hoists, and work on top of walls. For material relating to the dangers of heat stress, OSHA has the following website: https://www.osha.gov/SLTC/heatstress/.
Contractors are encouraged to remain aware of what OSHA is doing.