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OSHA: Old Ways Or New Strategy?

For the foreseeable future the Occupational Safety and Health Administration will continue its hardline approach to employer enforcement. Or will it?

OSHA is part of the Department of Labor, which as of this writing was on the verge of finally getting a new Secretary in Alexander Acosta. Once in office, he will need to fill positions under his leadership, including the Assistant Labor Secretary who heads OSHA, and who must be nominated by the President and approved by the Senate.

Speaking at a recent American Bar Association meeting, two OSHA acting leaders said the agency will continue to target “recalcitrant employers” using enterprise-wide enforcement and tools such as the Severe Violator Enforcement Program.

OSHA hiked penalties last year, to as high as $126,749 for willful/repeat violations, and $12,675 for serious, other-than serious and failure to abate violations.

For employers of less than 10 employees the average penalty in 2015 was $2,297 compared to $3,080 penalty average in 2016. For employers with over 250 employees the fines almost doubled, from $5,915 in 2015 to $10,065 in 2016.

Increasing penalties spurred more employers to contest cases, the officials admitted. In 2015 7% of citations were contested while 10% were in 2016.

In 2016 OSHA conducted more unprogrammed inspections, including about 3,000-4,000 inspections under the severe injury reporting rule. Last year 28% of inspections were compliance related, compared to only 20% in 2010.

“It remains to be seen whether these key enforcement initiatives continue to be the backbone of OSHA once a new Secretary of Labor and Assistant Secretary of Labor are confirmed,” says Tressi Cordaro of the Jackson Lewis law firm.

“Employers are eager to see an OSHA that embraces safety and health from a compliance perspective as opposed to one solely from an enforcement perspective,” she added.

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