Penalties for Repeat Violations Rise to $124,709 Each

OSHA Also Set to Upend Drug Testing Policies in November

Fisher Phillips today issued an advisory to Dallas-area employers that as of August 1, 2016, the Occupational Safety and Health Administration (OSHA) will be increasing the maximum penalties for health and safety violations for the first time since 1990. Fisher Phillips is a national management-side labor and employment law firm.

“Employers must aggressively and realistically assess their level of safety compliance and preparedness for dealing with OSHA inspections and the escalated penalty structure in order to avoid the possibility of signi substantial economic loss,” said Michael V. Abcarian, managing partner of Fisher Phillips in Dallas. “It goes without saying that OSHA has significantly upped the stakes for mismanagement and noncompliance with workplace safety requirements and is serious about punishing those who do not meet their obligations to ensure a safe and healthy workplace.”

The new penalty structure will raise maximum penalties for:

• Willful or repeated violations to $124,709 per violation from the current $70,000 per violation.
• Serious violations, violations of posting requirements and non-serious violations will increase to $12,471 per violation from the current $7,000 per violation.
• Failure to comply with hazard abatement obligations following an OSHA safety inspection to $12,471 per day from the current $7,000 per day.

Importantly, these dramatic increases are intended to serve as a one-time opportunity for violation penalties to “catch-up” with inflation, according to OSHA. But there is more on the horizon. In each subsequent year, penalties will automatically be adjusted and increased based on the Consumer Price Index.

Employers should take action now to avoid penalties, and these five steps will go a long way in that effort, according to Abcarian:

1. Update safety policies as soon as possible to ensure compliance with current standards and obligations.
2. Train supervisors on how to avoid risks of non-compliance, especially concerning routine matters such as recordkeeping and required safety training for all workers.
3. Aggressively train and periodically refresh managers on how to properly handle OSHA inspections and catastrophic workplace disasters.
4. Comprehensively review workplace security and potential threats.
5. Implement regular self-inspections and document corrections that have been implemented to avoid violations.

“In addition to OSHA’s substantial increase in penalties, the agency is set to roll out more notable changes later this fall,” said Abcarian. “It is important that employers note that the agency is upending reporting and recordkeeping rules, including those governing drug testing procedures following workplace incidents.”

According to Abcarian, many employers have historically drug tested employees following workplace injuries for various lawful and practical reasons. In some situations, disciplinary action has been taken against those who tested positive. However, as part of OSHA’s recordkeeping and reporting rule that will take effect on November 1, 2016, such drug-testing practices will not be allowed. According to the agency, blanket drug testing policies may impermissibly deter employees from reporting safety-related incidents. As such, employers should only test employees for drugs if they reasonably suspect substance abuse contributed to the occurrence of the incident. However, what is considered reasonable will be determined after the fact.

There are limited exceptions that will allow employers to drug test employees following workplace injuries and incidents. Testing will continue to be permissible when a federal or state law requires it, such as Department of Transportation rules that obligate all truck drivers submit to drug testing following certain kinds of incidents.

“We have seen more changes in OSHA’s enforcement landscape in the past two years than in the preceding 20, and there is no end in sight” said Abcarian. “While it may seem daunting at times, employers must continuously monitor current and upcoming safety requirements to avoid getting caught in OSHA’s crosshairs.”