The Good News and the Bad News

Which do you want to hear first? Let’s go with the good news. The Occupational Safety and Health Administration announced yesterday that it is delaying enforcement of the anti-retaliation provisions of its new “Reasonable Reporting Procedure” rule, §1904.35. Originally scheduled to go into effect on August 10, 2016, enforcement is now scheduled to begin on November 1, 2016. This delay will allow OSHA to provide guidance to the public in the form of Frequently Asked Questions or a Compliance Directive.

This announced delay also comes in the wake of a lawsuit filed on July 8, challenging the new anti-retaliation requirements, especially their effect on post-accident drug testing and safety incentive programs. As we noted in our June 28 OSHA Update on the new requirements, one key problem with §1904.35(b)(1)(iv) is that, although OSHA wrote in the Preamble to the new rule that post-accident drug testing must measure an employee’s present impairment, there are no such tests that can do so. OSHA will clearly need to reconcile this conundrum, among other issues.

Now, the bad news. OSHA has announced that beginning with citations issued after August 1, the penalties for violations of OSHA Standards and under the General Duty Clause are going up by 78 percent. The top penalty for Serious and Other than Serious violations is being increased from $7,000 to $12,471. The maximum penalty for Willful or Repeat violations will increase from $70,000 to $124,709, and the minimum penalty for Willful violations will increase from $5,000 to $8,908.

In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act, which applies to a number of agencies within the Department of Labor, including OSHA. This law allows OSHA to increase the penalty structure for the first time since 1990, although the Agency had achieved higher penalties under the existing structure by various enforcement techniques, such as revising its “repeat violation” policy to cover violations that occurred within a five-year period.

If you have not been motivated in the past to make sure that your business is compliant with all applicable OSHA requirements, this would be a good time to do so.

If you have any questions about how either to stay out of or get out of trouble with OSHA, please contact any member of our Workplace Safety Practice Group: Bill Principe, Steve Simko, David Smith, Pat Tyson, or Neil Wasser.

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