Legal insights into new OSHA instruction

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Jackson Lewis, LLP, a law firm providing “Preventive Strategies & Positive Solutions for the Workplace®,” comments in a recent web blog that a new OSHA Instruction has the effect of increasing penalties for employers receiving citations. Jackson Lewis recommends that all employers take note.

The law firm cites the following types of cases considered as SVEP cases under the program:

• A fatality/catastrophe inspection in which OSHA finds one or more willful or repeated violations or failure-to-abate notices based on a serious violation related to a death of an employee or three or more hospitalizations.
• An inspection in which OSHA finds two or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to a “high-emphasis hazard.” A high-emphasis hazard is defined as a high gravity serious violation of specific standards related to fall hazards, amputation hazards, combustible dust hazards, silica hazards, lead hazards, excavation/trenching hazards, shipbreaking hazards, and petroleum refinery hazards.
• An inspection in which OSHA finds three or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to highly hazardous chemicals, as defined in OSHA’s process safety management standard.
• All egregious enforcement actions.

Jackson Lewis reports that OSHA has also issued a memorandum to Regional dministrators that administratively enhances OSHA’s penalties, which are currently considered too low. The law firm notes in particular these OSHA changes in enforcement and penalties:

• Expanding the time frame for considering an employer’s history of violations (when setting penalties) from three to five years.
• Increasing penalties by 10 percent for employers that have been cited for any high gravity serious, willful, repeat, or failure-to-abate violations within the previous five years.
• Increasing the minimum proposed penalty for a serious violation to $500.
• Calculating final penalties serially, unlike current practice where all of the penalty reductions are added and then the total percentage is multiplied by the gravity-based penalty to arrive at the proposed penalty. (OSHA’s example in the memorandum results in an increase of approximately 50%.)

To read the full OSHA Law Blog, click Here.

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