On April 26, the new OSHA director David Michaels held a web chat to answer questions from the public about OSHA's new regulatory agenda. The new agenda includes, among other items, a new rule that would require all businesses to implement an Injury and Illness Prevention Plan, which would include "planning, implementing, evaluating and improving processes and activities that protect employee safety and health."
Although Michaels could not offer many details of the new proposed rule other than to state it is a departure from what OSHA has typically done and that it will hold employers responsible for all hazards in their workplaces. In explaining, Michaels said that the new rule would not be a substitute for existing OSHA standards; rather, it would provide "a mechanism to achieve culture change needed in this country to effectively address workplace safety and health issues."
This is a harbinger of changes to come in both OSHA enforcement and OSHA attitude toward businesses. There are other significant changes that Michaels' outlined. There is a new proposed rule to change the injury and illness reporting requirements, moving from the current paper-based reporting, to an online reporting so OSHA can more quickly respond to workplaces where workers are at greatest risk for injury. Both the new rules will be discussed in stakeholder meetings in June and July.
Among the new recordkeeping and reporting requirements on the OSHA 300 log will be a new category for musculoskeletal disorders which was introduced last fall that is expected to go into effect in July. This will focus on ergonomic injuries and hazards that are enforced under the Occupational Safety and Health Act's general-duty clause. This rule was set to go into effect earlier last decade but was supposedly killed by the Bush administration.
In addition, Michaels' outlined a new Severe Violator Enforcement Program and detailed plans for increasing penalty amounts for all OSHA violations. In explaining the initiative for the new program, Michaels said "[f]or many employers, investing in job safety happens only when they have adequate incentives to comply with OSHA's requirements. Higher penalties and more aggressive, targeted enforcement will provide a great deterrent and further encourage those employers to furnish safe and healthful workplaces for their employees."
After assembling a work group last fall, the general consensus of the group was that the current penalties "are two low to have an adequate deterrent affect." In an April 24 memorandum to regional administrators, Dr. Michaels outlined changes to the Field Operations Manual, the manual that directs, among other things, the calculating of fines for OSHA violations. Michaels outlined several changes that will take effect in "the next few months." Among those most significant changes are:
The time frame for considering an employer's history of violations will expand from the current three years to five years.
An employer that has been cited by OSHA for any high gravity serious, willful, repeat or failure to abate violation within the previous 5 years will receive a 10 percent increase in its penalty.
The time frame for repeat violations will also increase from three to five years.
Area directors and informal conferences
The Area Directors will still be allowed to determine if a size or history reduction should be granted. However, if the Area Director believes that a full-gravity-based penalty is necessary to achieve the desired deterrent effect, they may do so by thoroughly documenting the file.
Area Directors will now only be authorized to offer penalty reductions up to 30 percent; amounts over that would have to be approved by a regional administrator. Area Directors will also be authorized to offer 20 percent reductions to employers with less than 250 employees if they agree to hire an outside safety and health consultant.
Gravity-based penalties (GBP's)
OSHA predicts that the average fine for a serious violation will increase from the current $1,000 to between $3,000-4,000. The GBP limits will all be raised.
These measures that have been introduced will have a very significant impact on all businesses. Stepped-up inspections, increased fines and less leeway for Area Directors to reduce fines, will all lead to employers needing to make sure they have every I dotted and T crossed with regard to their OSHA requirements. The next few years will be challenging for business that end up with OSHA inspections of their workplaces.
John Skowronek is a human resource specialist and OSHA trainer providing staffing and training services to Nevada businesses. His Reno-based staffing company is Square One Solutions. Contact him at 825-9675.