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A maximum $15,625 fine for a serious workplace safety violation is set to hit a multiplier in late March, when the Occupational Safety and Health Administration will begin to fine employers for each instance of a violation.
This means 10 construction workers lacking hard hats could potentially mean a $15,625 fine times 10, or $156,250. It’s a worst-case scenario, but it’s a potential reality employers will face as the agency aims to make violations that could result in death or serious injuries more costly, experts say.
So-called “instance-by-instance” penalties are nothing new — the agency has had the measure in place since 1990, though it currently only applies to violations deemed “egregious.”
The new program, announced Jan. 26 with a 60-day waiting period before enforcement, is intended to improve accountability among employers that repeatedly violate workplace health and safety rules, the Department of Labor said in a statement.
The program won’t apply just to repeat offenders — virtually every employer is on notice, according to legal experts, who say the move is in line with the Biden administration’s efforts to improve workplace safety.
This is “fully consistent with this administration in that this is part of the broader initiative to increase enforcement against employers,” said Andrew Brought, a Kansas City, Missouri-based attorney with Spencer Fane LLP.
“It is that sort of new-sheriff-in-town mentality where enforcement is king, and they are using all the tools in their toolbox to ratchet up enforcement,” said Eric Conn, Washington-based founding partner of Conn Maciel Carey LLP, noting the fines could add up.
“Imagine that you operate a metal-fabricating facility, and you've got 100 presses and OSHA determines that they're all inadequately guarded,” he said. “(OSHA) could come in and instead of citing one violation, with a $15,000 penalty for not guarding your machines, they could issue a separate machine guarding violation for each machine at a facility. That's 100 machines, so instead of a $15,000 penalty, it’s $1.5 million. That’s a lot.”
The new enforcement tool will also apply to such things as injury recordkeeping, with the potential for substantial fines for insufficient logs, he said.
John Ho, New York-based chair of the OSHA practice at Cozen O'Connor P.C., said that while the enforcement procedure will lead to heftier fines, more employers are likely to contest them, and OSHA will have its legal department kept busy proving its cases.
“That’s obviously going to provide businesses with a lot more incentive to contest these citations,” he said. “Historically, unless there was a fatality or serious injury, most employers aren't getting hit with six figures in penalties. But if you are seeing significantly more citations and more penalties, just on a pure financial basis you're going to give these businesses more incentive to contest these.”