Monday, April 15, 2024

OSHA Increasing Fines, Increasing Their Enforcement Guidance

Under the current administration, the Occupational Safety and Health Administration has begun to enhance their enforcement efforts. In the fall of 2022, we saw articles explaining how OSHA is working with the Department of Justice to file criminal charges for some very serious OSHA violations. While criminal cases are rare, there has been a lot of publicity around these cases. Go to rb.gy/jiak9w to read more information about them.

Recently, OSHA announced new enforcement guidance encouraging Regional Administrators and Area Office Administrators to issue more “instance-by-instance citations” and discouraged “grouping” of violations. OSHA staff can now cite certain types of violations as Instance-by-Instance citations when they identify “high gravity” serious violations of OSHA standards specific to falls, trenching, machine guarding, respiratory protection, permit-required confined spaces, lockout tagout and other-than-serious violations of OSHA standards specific to recordkeeping. A decision to use instance-by-instance citations should normally be based on consideration of one or more of the factors listed as follows: 

The employer has received a willful, repeat or failure to abate violation within the past five years.

The employer has failed to report a fatality, inpatient hospitalization, amputation or loss of an eye.

The proposed citations are related to a fatality/catastrophe.

The proposed recordkeeping citations are related to injury or illness(es) that occurred as a result of a serious hazard.

OSHA also encourages staff not to “group” violations, which was common in the past. They contend citing each item separately will encourage employers to more effectively comply with the rules. These new guidelines will become effective March 27.  

In addition to the new enforcement guidance, OSHA penalties went up again this year on Jan. 16. The maximum penalty for a Serious violation increased from $14,502 to $15,625 per violation. The maximum penalty for a Willful/Repeated violation increased from $145,027 to $156,259 per violation. The penalty increases are scheduled annually following a 2015 law that requires Federal civil penalties to be adjusted each year.

However, when combined with the new enforcement guidelines, this could significantly increase the penalties an employer may see for a given situation. For example, in the past, OSHA might issue a small business three or four citations. The fine for each citation would normally be less than the maximum if they had a good history, and the size of the business was considered. With the new guidance, the same situation may now be issued six to eight citations and be combined with the increase in the penalty for each violation. The fines have only gone up approximately 8%. However, if they issue additional citations, the final penalty amount could more than double.  

OSHA has recently started hiring additional new inspectors. While OSHA’s staffing levels significantly decreased during the Covid years, they are re-staffing, and from their press releases, they intend to increase their inspection staff well above their 2019 levels. 

Severe Violator Enforcement Program

In the fall of 2022, OSHA updated the Severe Violator Enforcement Program (SVEP). This program addresses employers who intentionally disregarded the health and safety of their employees. Employers were remanded to this program if it was determined they committed willful, repeated or failure to abate violations. These updates make this program much more stringent. Employers will now be placed in the program if OSHA finds at least two willful or repeated violations or they issue failure to abate notices based on highly serious situations. Also, follow-up inspections must be conducted within one to two years after the final order is issued. There was no time frame for these inspections prior to this update.

To incentivize employers to handle SVEP hazards more quickly, some incentives were revised. The employer will now be eligible to be removed from the SVEP three years after the date that all SVEP hazards have been addressed. Employers can also now have the option to reduce the three-year period on SVEP to two years if they agree to an “enhanced settlement agreement” that involves multiple options, including management leadership, worker participation, hazard identification, assessment, prevention and control as well as others.

In 2017, OSHA required certain employers to electronically enter a summary of accident (OSHA 300A) information into the OSHA Injury Tracking Application (ITA). It is common for OSHA inspectors to request accident logs during inspections; however, this electronic posting now gives inspectors access to this information without a visit to the job site. This information is also posted in a searchable database within OSHA. OSHA has scheduled inspections based strictly upon Days Away Restricted or Transferred (DART) rates calculated from summary accident information. Last summer, OSHA issued guidance to staff to enforce the submission of this electronic information by employers. Recordkeeping violations may now be issued.

Review Safety And Compliance Program

This updated guidance to OSHA staff emphasizes the need for you to re-check the overall safety training program at your facility. Spend some time before operation by reviewing your safety and compliance program. If you do experience an accident at your gin, and have an OSHA inspection, they will be interviewing your employees to see if they are properly trained and if you are enforcing your safety rules. Inspectors will also want to see documentation.

Be sure you have an initial training session put together for all your employees at the beginning of the season and be sure you have a method of documenting this training. This can be as simple as a sign-in sheet with notes detailing the topics that were covered in the training. Make sure you review safety policies and procedures with facility operational staff. Their participation and “buy in” to your safety program is essential. Time spent with them now before the plant is in operation will pay dividends when the season begins. Providing correct documents and the knowledge and attitude of your plant staff can make a huge difference with an inspector’s visit.   

Cotton’s Calendar March 15: Staplcotn Board Meeting, 214 W Market Street, Greenwood, Mississippi. March 27: Plains Cotton Growers, Lubbock, Texas. March 30-31: 2023 TCGA Annual Meeting and Trade Show, Lubbock Memorial Civic Center, Lubbock, Texas.

The new administration has directed OSHA to increase enforcement and stop employers from exposing workers to life-threatening hazards or failing to comply with workplace safety and health requirements. The recently established OSHA goals are to save lives, target employers who put “profit over safety” and create a greater accountability for safety and health. Employers should prepare!


Duncan McCook, TCGA manager of regulatory affairs, contributed this article. Contact him at duncan@tcga.org.

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