OSHA violations and penalties

Scope

OSHA’s violation penalty structure is based on a number factors, including the type of violation as well as the employer’s size, history, and good faith.

Regulatory citations

Key definitions

• CSHO (Compliance Safety and Health Officer): The federal OSHA employee who conducts inspections for the agency — a.k.a. “OSHA Inspector.”
• General Duty Clause (GDC): A section of the OSH Act — Section 5(a)(1) — that requires employers to protect employees from recognized, serious hazards, regardless of whether there is a specific standard addressing that hazard. OSHA often uses the GDC to cite employers for not protecting workers from ergonomic-type hazards, workplace violence, and heat stress.
• General Industry: The group of industries who are covered by OSHA’s Part 1910 regulations. This includes the majority of workplaces, except for construction, agriculture, and maritime.
• OSH Act: The Occupational Safety and Health Act of 1970, which is the enabling legislation for OSHA.
• OSHA: The Occupational Safety and Health Administration — the federal agency that sets and enforces worker safety and health laws.
• Repeated violation: A hazardous/violative condition that is the same or similar to a previously cited condition in the past five years at either the same establishment or another establishment of the same company under federal OSHA jurisdiction.
• Serious violation: 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.
• Willful violation: A violation that the employer intentionally and knowingly commits.

Summary of requirements

Under the OSH Act, employers should:

• Understand the OSHA violation penalty structure:
  • 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 $16,131.
  • 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 can be as high as $16,131.
  • Willful — A violation that the employer intentionally and knowingly commits; carries a maximum penalty of $161,323.
  • 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 $161,323.
  • Failure-To-Abate — A violation cited previously but not corrected within the prescribed abatement period; carries a $16,131 per day penalty maximum.
• Understand that the “gravity” of the violation plays a key role in penalty amount. The gravity of the violation is the primary consideration in determining penalty amounts. It is the basis for calculating the basic penalty for Serious and Other-Than-Serious violations. (Repeat and Willful violations can be based on the initial Serious or Other-Than-Serious gravity-based penalty but are multiplied by five to 10 times). To determine the gravity of a violation, OSHA makes the following two assessments:
  • The severity of the injury or illness which could result from the alleged violation.
  • The probability that an injury or illness could occur as a result of the alleged violation.
• Know the adjustments in penalties that OSHA is required to make based on the size of the employer. Once a base penalty has been calculated using the Gravity-Based Penalty system, OSHA may then assign a reduction based on certain factors, including size of the employer. The size adjustment factor allows for the following maximum penalty reductions:
  • 70 percent for employers with 1-10 employees
  • 60 percent for employers with 11-25 workers
  • 30 percent for employers with 26-100 workers
  • 10 percent for employers with 101-250 workers
• Be familiar with OSHA’s “good faith” penalty adjustment policy. There may be up to an additional 25 percent reduction for evidence that the employer is making a good faith effort to provide a safe and healthy workplace.
  • 25 percent for having a written and implemented safety and health program.
  • 15 percent for having a documented and effective safety and health program, but with more than only incidental deficiencies.
  • No good faith reduction is given to employers with no safety and health program or where a Willful violation is found.
• Know that OSHA has 6 months from learning of a hazard to issue citations.
• Post OSHA citations for 3 days or until the violation is corrected, whichever is longer.
• Exercise their right to an informal conference to discuss proposed citations. Employers may also contest citations before an independent review commission.
• Remember there’s only 15-working days to file a proper notice of contest. This must be in writing.