Before determining the amount of a penalty, OSHA has to categorize the violation. Violations are classified as:

• Serious — A violation where there is a substantial probability that death or serious physical harm could result, and the employer knew or should have known of the hazard; carries proposed penalty of up to $16,550 per violation, but no less than $1,221 with all penalty reductions.
• Other-Than-Serious — A violation having a direct relationship to safety and health, but the most serious injury or illness that could reasonably be expected to result from an employee’s exposure would not be severe; no penalties are usually proposed, but they can be as high as $16,550.
• Willful — A violation that the employer intentionally and knowingly commits or the employer has received several different repeat violations. It carries a maximum penalty of $165,514 per violation, but no less than $11,823.
• Repeat — A violation that is similar to a previously cited violation at the same company location, or at other locations of the same company, within the previous five years; carries a maximum penalty of $165,514, but no less than $11,823 (unless also an other-than-serious violation). Note that a court has stated that the five-year lookback as prescribed in OSHA’s Field Operations Manual (FOM) is only a guide, and there’s no statutory time limit on the length of time that a previously issued citation can be used as a basis for a repeat violation.
• Failure-To-Post — A violation of OSHA’s posting requirements carries a penalty up to $16,550.
• Failure-To-Abate — A violation cited previously but not corrected within the prescribed abatement period; carries a $16,550 per day penalty maximum.

By January 15 each year, federal OSHA must adjust its civil penalty amounts based on October to October inflation data. State-plan states must adopt maximum penalties that are at least as stringent as federal OSHA’s penalty amounts.

Criminal penalties

Note that 29 U.S.C. 666 and 18 U.S.C. 1114 provide for criminal penalties in the following cases:

• Willful violation of an OSHA standard, rule, or order causing the death of an employee may lead to punishment by a fine up to $500,000 and imprisonment up to one year, or both;
• Giving unauthorized advance notice of an inspection to be conducted may lead to punishment by a fine up to $1,000 or imprisonment up to six months, or both;
• Knowingly giving false information may lead to punishment by a fine up to $10,000, or imprisonment up to six months, or both; and
• Killing of an OSHA officer while engaged in the performance of official duties may lead to a punishment specified at 18 U.S.C. 1114.

OSHA’s legal arm has made a number of criminal referrals to the U.S. Department of Justice and has forged more partnerships with state/local prosecutors to punish employers under state criminal statutes. OSHA explains that the timely prosecution of an individual within the community in which he or she works and where the victim often resided has a strong deterrent effect in the industry and sends a signal to the OSHA-regulated community that behavior that results in a fatality or significant worker injury or illness will not be tolerated. In a nutshell, criminal enforcement is an effective tool, according to the agency.

Severe Violator Enforcement Program (SVEP)

Beyond civil and criminal penalties, certain employers may face heightened enforcement scrutiny after OSHA finds willful, repeated, or failure-to-abate violations. The SVEP focuses on employers that have demonstrated indifference to their obligations under the Occupational Safety and Health Act. Severe violators are listed publicly and subject to follow-up inspections.

Criteria in CPL 02-00-169 place employers in the program if they receive citations for at least two willful or repeated violations or receive failure-to-abate notices based on the presence of high-gravity, serious violations. Mandatory follow-up or referral inspections must be conducted within two years after the final order. Employers are only eligible to exit the program, either:

• Three years after receiving verification that all program-related hazards have been abated, or
• Two years after such verification if the employer consents to an enhanced settlement agreement that includes implementing a safety and health management system.

Several hundred employers are listed publicly on the SVEP log. In practice, a SVEP designation does not change how penalties are calculated, but it can increase the frequency of OSHA inspections. That can lead to further citations and penalties if compliance officers discover unabated or new violations.