A maximum fine of $15,625 for a serious workplace safety violation will reach a multiplier at the end of March, when the Occupational Safety and Health Administration will begin fining employers for each violation.
This means that 10 construction workers not wearing a helmet could potentially mean $15,625 in fines times 10, or $156,250. That’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 injury 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 applies only to violations deemed “extreme.”;
The new program, announced Jan. 26 with a 60-day waiting period before enforcement, is intended to improve accountability among employers who repeatedly violate workplace health and safety rules, the labor ministry said in a statement.
The program won’t apply only to repeat offenders — virtually every employer is notified, according to legal experts, who say the move is in line with the Biden administration’s efforts to improve workplace safety.
This is “completely consistent with this administration because this is part of the broader initiative to increase oversight of employers,” said Andrew Brought, a Kansas City, Missouri-based attorney with Spencer Fane LLP.
“It’s kind of the new-sheriff-in-town mentality where enforcement is king, and they’re using every tool in their toolbox to increase enforcement,” said Eric Conn, Washington-based founder of Conn Maciel Carey LLP, noting that fines can increase.
“Imagine you run a metal fabrication facility, and you have 100 presses and OSHA determines that they are all inadequately guarded,” he said. “(OSHA) could come in and instead of citing a violation, with a $15,000 penalty for not guarding your machines, they could issue a separate machine guarding violation for each machine in a facility. That’s 100 machines, so instead of a $15,000 penalty, that’s $1.5 million. That’s a lot.”
The new enforcement tool will also apply to such things as damage record keeping, with the potential for significant fines for insufficient logs, he said.
John Ho, New York-based chair of the OSHA practice at Cozen O’Connor PC, said that while the enforcement action will result in stiffer fines, more employers will likely contest them, and OSHA will keep its legal department busy trying to prove its case.
“It’s obviously going to give companies a lot more incentive to contest those citations,” he said. “Historically, unless there was a fatality or serious injury, most employers don’t get hit with six-figure penalties. But if you see significantly more citations and more penalties, just on a purely financial basis, you’re going to give these companies more incentive to contest these.”