OSHA has announced a new enhanced enforcement policy for use against employers who have a history of certain serious safety and health violations. The program, which has been described only in outline form, consists of five major elements: follow-up inspections, programmed inspections, publicity, settlements and enforcement orders.
In certain cases, after an employer has received a citation, OSHA will conduct a follow-up inspection at the involved establishment to determine that the condition no longer exists. The cases covered by this aspect of the policy are those involving high gravity, willful violations, multiple high gravity serious violations, repeat violations, failure-to-abate notices or a serious or willful violation related to a fatality. It is not clear whether these follow-up inspections would be limited to determining whether the originally cited condition no longer exists. The policy also has OSHA conducting follow-up inspections at other establishments of the employer to verify abatement of previously cited conditions where there is reason to suspect abatement may not have occurred.
In scheduling inspections, OSHA will place a higher priority on inspecting all facilities run by an entire corporation if any facility in the corporation has committed high gravity violations.
If a facility commits one of the high gravity violations described above, OSHA will mail a copy of the citation to the facility's corporate headquarters and will "continue to issue local and national press releases on enforcement actions."
OSHA may refuse to settle a case unless it includes some or all of the following provisions: a requirement that the employer hire a consultant to "develop a process to change the safety and health culture in the facility," a statement that the agreement applies corporate-wide, which makes it a "corporate-wide" settlement and "information on other job sites of the employer" may be included. Other provisions included are requirements that the employer reports to OSHA any serious injury or illness that requires outside medical care and consenting to OSHA inspections based on such a report. This provision goes well outside OSHA’s current reporting requirements. A provision stating the employer’s consent to entry of a court enforcement order under Section 11(b) of the OSHA Act also may be included. That provision authorizes a federal court of appeals to require, under pain of contempt of court, correction of violations alleged in citations that have been settled or have otherwise become final order of the Occupational Safety and Health Review Commission.
Section 11(b) Enforcement Orders
In some cases, OSHA will apply to a federal court of appeals for the above-mentioned Section 11(b) orders. If a Section 11(b) order has been issued and the employer still does not comply, OSHA will seek a contempt order, which can include other sanctions by the court.
OSHA’s press release describes the new program as applying to a minority of employers, those who "continually disregard their very basic obligations" or who "ignore their responsibility to obey the law" and commit "high gravity" violations and employers should be concerned. For example, the new policy applies to a "serious … violation related to a fatality." Because the criterion of "high gravity" does not apply to this category, it is subject to great abuse, for it applies in reality to any fatality-related violation, regardless of whether the underlying condition posed a high probability of harm. There are many instances in which a violation can actually pose a low probability of harm but can, in a small number of cases, cause a fatality. In effect, OSHA would be focusing its major enforcement efforts on cases that are unfortunate tragedies rather than instances of appalling employer conduct. This unfortunate aspect of the new policy gives employers an incentive to litigate rather than settle citations arising out of inspections precipitated by fatalities.
Another worrisome aspect of the policy is that it applies to violations that are merely "repeated," regardless of whether they are of low gravity or whether the employer's behavior is truly recidivistic. At the moment, case law defining a "repeated" violation is subject to prosecutorial abuse, for any violation of the same specific standard may be relied upon to serve as the foundation for enhanced enforcement. Thus, even conscientious employers may be caught by this aspect of the new policy. Employers who receive OSHA citations, therefore, should carefully examine the merits of each citation and any offer by OSHA to settle. The next citation the employer receives may build on that previous citation and involve the employer in a series of consequences not justified by the employer’s actual attitude toward worker safety and health. To keep employers from being found in contempt of court, abatement requirements of citations should be carefully negotiated to provide clear direction to the employer, to OSHA and to the court.