The U.S. Occupational Safety and Health Administration's (OSHA's) field offices enforce workplace regulations in conjunction with policies and procedures set out in OSHA Directive CPL 02-00-148, OSHA's Field Operations Manual (FOM), published in November 2009. According to OSHA, the FOM establishes OSHA compliance safety and health officers' responsibilities for inspecting work sites. More specifically, the FOM includes instructions for determining penalty reductions companies may qualify for to reduce fines the agency imposes after job-site inspections.
OSHA recently revised the FOM's penalty reduction section, and the changes may significantly affect you.
The maximum penalty OSHA may impose on an employer under its statutory authority for a serious violation is $7,000. The FOM gives OSHA field personnel authority to reduce fines based on an employer's history of violations, company size and good faith. Implementation of the penalty-reduction policy has prompted some organizations to argue it results in fines that are too low and ineffective. The revised FOM and pending legislative efforts (H.R. 2067, Protecting America's Workers Act) are attempts to increase penalty amounts paid by employers.
Before the FOM's latest revisions, an employer who received an OSHA citation could qualify for a 10 percent reduction of fines if he or she had not been issued a serious, willful or repeat violation by OSHA or a state plan jurisdiction within the past three years. The new revisions increase the timeframe to five years.
In negotiations with OSHA, it may be more beneficial to change a citation's classification from "serious" to "other-than-serious" rather than working solely to reduce the monetary penalty proposed because of the effect on a prospective history reduction. However, this is a difficult objective, and OSHA personnel rarely will reduce a citation's nature in this mannerbut it is worth the effort.
OSHA also revised the FOM's timeframe for when repeat violations can occur from three years to five years. This means an employer who has received an OSHA citation that has become a final order for a substantially similar condition during the past five years may be cited for a repeat violation in the current instance.
It should be noted these guidelines are not statutory but reflect a new OSHA civil enforcement policy; as such, repeat citations based on similar violations that became final four or five years before the current instance may be subject to greater judicial scrutiny if challenged by an employer.
Current OSHA practice under the FOM also allows for a reduction in a proposed penalty based on a company's number of employees. The revision retains the current policy that a company with 251 or more employees does not qualify for a company size reduction. Under the new policy, employers with one to 25 workers may be eligible for a 40 percent reduction, those with 26 to 100 workers may qualify for a 30 percent reduction and employers with 101 to 250 workers may qualify for a 10 percent reduction.
The new policy retains the good faith reduction available for employers who have implemented a safety program. The good faith reduction can be up to 25 percent for employers with written, comprehensive plans in place but is not available if a citation alleges serious, willful, repeat or failure-to-abate violations.
Workplace enforcement remains OSHA's top priority, and achieving lower penalty amounts or having portions of citations withdrawn at the OSHA field office level without initiating the appeals process will be a challenge.
All contractors want to keep workers safe and minimize or avoid citationsthe FOM revisions demonstrate OSHA's resolve to make the financial sting of citations the primary compliance mechanism.
Harry Dietz is NRCA's director of risk management.