OSHA Creep

OSHA compliance recently became harder and costlier, and may continue to do so, thanks to several developments at the federal and state level. (Click here for a prior post on OSHA reform.)

You may go to prison if you discipline or terminate an employee who might be worried about an unsafe working condition—even though your employee had not bothered to tell you about his concern. That is what the current version of the Robert C. Byrd Miner Safety and Health Act of 2010 (H.R. 5663) provides.

The Byrd Act, not yet law, would prohibit firing or discriminating against an employee who refuses to perform the his duties if he “has a reasonable apprehension that performing such duties would result in serious injury to, or serious impairment of the health of, the employee or other employees.” Employers should wonder how they will know whether their employees have “reasonable apprehensions”—the Act does not require the employee to voice his apprehension for this provision to protect him from discrimination for failing to do his work. If the Act becomes law, an employer who fires an employee because that employee is not performing may find itself faced with a complaint.

The Byrd Act has not moved since July 29, 2010, when it was placed on the Union Calendar. Depending on the results of the recent elections, it may not move at all.

If your business has an effective noise protection program in place, that may not protect you from OSHA penalties.

The U.S. Occupational Safety and Health Administration recently proposed adopting a new interpretation of the word “feasible” as it is used in certain sections of the General Industry and Construction Occupational Noise Exposure standards (sections 1910.95(b)(1) and 1926.52(b)).

Feasible, which currently means that a measure is both capable of being done and that the costs of implementing the measure are less than the cost of an effective hearing conservation program, would only mean capable of being done. If you have avoided certain measures because they were not economically feasible, and if OSHA determines that they were capable of being done, your program will not be in compliance.

For example, if your employees are exposed to a loud workplace but you require them to wear effective ear protection—and they do—this will not be good enough. If OSHA decides that redesigning your workplace with expensive sound-absorbing baffles is capable of being done, you have to do it. Even if it would be no more effective than your current program.

Instead of allowing a cost-benefit analysis, the Administration would consider administrative or engineering controls economically feasible when the cost of implementing those controls will “not threaten the employer’s ability to remain in business.” So, if OSHA decides those sound-absorbing baffles won’t threaten your ability to remain in business, they are economically feasible. Oddly, though the Administration argues that its proposal restores the “plain meaning” of feasible to its enforcement policies by eliminating cost-benefit analyses, it did not state how it derived its proposed economic viability standard from that plain meaning.

And another thing—the Administration increased OSHA penalties effective October 1.  Here’s how:

  • The time period for considering an employer’s history of violations—including for the classification of repeat violations—increased from three years to five, and an employer cited for any high gravity serious, willful, repeat, or failure-to-abate violation in the past five years will receive a 10 percent increase in its penalty. 
  • An area director now has discretion to separately cite high gravity serious violations related to standards and hazards in the SVEP with individual penalties, rather than grouping them; similarly, final penalties are now calculated serially rather than together, increasing the final penalty. 
  • The Administration adopted a gravity-based penalty structure for serious violations, ranging from $3,000 to $7,000.
  • The penalty reduction for employers with fewer than 250 employees decreased.
  • The 10 percent reduction for employers with a strategic partnership agreement has been eliminated.

The Administration has also recommended that Oregon OSHA increase its penalties, historically among the lowest in the country. Oregon OSHA is obliging.

Oregon OSHA will propose significant increases to its penalty structure in December. Proposed changes include increasing the difference between base penalties for small and larger businesses, reducing and possibly eliminating a decrease in base penalties for an employer’s immediate correction of violations, reducing the reduction for a lower-than-average injury rate, and adjusting the calculation of base penalties to increase the penalties for serious violations. For a list of links regarding the OR OSHA public forum on penalty structures, see here.

 

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