Changes at OSHA – 2 of 3 – Repeat Violations & Reductions

On April 22, 2010, David Michaels issued a memo to the OSHA Regional Administrators outlining changes to OSHAs penalty policies. Some of these administrative changes are being made now and will end with the advanced reprogramming of government computers and updating OSHA Information System scheduled to be completed by October 2010. Shown below are the anticipated changes.

Repeat Violation Lookup Time

Previously OSHA went back three years to check if an employer had a history of violations. This historical look will now go back five years. If an employer has been inspected in the last five years and has no serious, willful, repeat, or failure-to-abate violations, employer receives a 10 percent penalty reduction for history. If an employer has been cited by OSHA in the past five years for any high gravity serious, willful, repeat or failure-to-abate, they will receive a 10% penalty increase up to the statutory minimum. If an employer has not been inspected or the received citations mentioned above, they will not receive a reduction nor increase.

The time period to determine repeat violations will also increase from three to five years.

Company Size Reduction

The agency will be adopting a penalty reduction for size. Employers with 250 employees or less will receive a reduction of 10-40 percent. Larger employers with 251 employees or more are not eligible for a size reduction.

Good Faith Reduction

Good faith reduction procedures will be kept. The good faith penalty reduction is given to an employer who has made an effort to implement an effective safety and health program. Employers are not eligible for a good faith reduction if they are receiving a high-gravity serious, willful, repeat or failure-to-abate violation.

Quick Fix Reduction

The 15% Quick Fix reduction is retained and given to employers who immediately abate hazards found during an inspection. However, the 10% strategic partnership reduction is eliminated.

New Penalty Reduction Calculation

Another interesting modification to the penalty calculation is that the penalties will be calculated serially, rather than the present practice where all of the penalty reductions are added together and the total percentage is used. Example: employer receives a $5000 penalty with the following reductions: 10% - history, 15% - good faith, 15% - quick fix and a 30% size reduction.

Old Method: Add these together (10+15+15+30) and penalty is reduced by 70%. The companys penalty is $1500 ($5000 X 70%).

New Method: $5,000 X 10% = $500 or penalty is now $4500, reduce $4500 by 15% new penalty is $3825, reduce $3825 by 15% new penalty is $3251, then apply the 30% size reduction and the employer end up with a penalty of $2275.

Old method employer pays $1500, new serially calculation method results in a $2275 penalty.

Gravity based penalties are also increased from $1000 to $3000-$5000.

In an informal hearing, smaller employers (250 or less) are eligible for an additional 20% reduction, if that employer agrees to hire an outside safety and health consultant.

Area directors have authority to offer up to a 30% penalty reduction to employers during an informal conference. Any reduction over 30% will have to be approved by the Regional Administrator. However, an employer has to be in good standingany previous penalties paid (or current with penalty payment plan) to receive any penalty adjustments.

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