Not so Ahead of Schedule: OSHA Reform
Contributor: Louis A. Ferreira
Congress has proposed legislation that would amend the 
Occupational Safety and Health Act of 1970 to increase both civil and criminal penalties, expand coverage, and create new obligations for employers. Congress has not acted recently on the bill, named the “Protecting America's Workers Act," but employers should expect action sometime in the new year.
Willful violations of OSHA that result in the death of a worker would be a felony punishable by up to 10 years in prison, while willful violations resulting in serious bodily injury would be a felony punishable by up to five years in prison. Currently, the criminal penalty for a willful violations resulting in death is imprisonment for 1 year. There is no criminal penalty under the existing act for a serious bodily injury resulting from a willful violation. In addition, the maximum civil penalties in all OSHA violation categories would increase, and would be adjusted periodically according to the Consumer Price Index.
Oregon-OSHA administers its own regulations for most employers in the state but adopts standards and penalties at least as stringent as federal OSHA. In other words, if federal OSHA standards are changed, these impacts will be enforced in Oregon in short order. Employers should be concerned about the scope of these changes because like most legislation, the devil is in the details of how the law is changed. For instance, a willful violation of an OSHA standard does not necessarily require an intentional decision to violate the regulation. A willful violation is defined to exist where an employer or supervisor “recklessly” disregards the requirements of a regulation. Knowledge of the regulation is usually not required it the employer or supervisor should have known of the regulation or standard.
Additionally, employers would be prohibited from
- adopting or implementing policies or practices that discourage reporting work-related injuries or illnesses, or that discriminate or provide adverse action against any employee reporting such injury or illness; and
- reducing wages or employee benefits while employees participate in or aid workplace inspections
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Oregon OSHA Clarifies That Employers Are Liable On Per-Employee Basis
Are Oregon contractors liable on a per-employee basis for failing to comply with OSHA personal protective equipment (PPE) and training requirements? Under a new administrative order issued by Oregon OSHA, the answer is yes.
Under this order, Oregon OSHA adopted a federal OSHA rule clarifying that employers are liable for violations on a per-employee basis. Until now, there was some uncertainty whether OSHA could impose penalties on an employer for each employee who failed to comply with OSHA’s PPE and training standards. Not now. This raises the stakes for any Oregon contractor that fails to make sure its employees follow these standards. Contractors should alert their safety managers that each PPE or training violation (for example, an employee not showing up with the right footwear) may result in a penalty.
Because the Oregon OSHA order is based on a federal rule, contractors working outside Oregon should find out whether the new federal OSHA rule applies in their states too.
