Time to Prepare for OSHA Inspection Changes

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As we round the corner on the year, employers looking forward to a productive and safe 2016 should be aware of important changes to OSHA’s enforcement regime that occurred in 2015. Prevention will be more important than ever in the coming year due to new accident reporting requirements that might bring OSHA inspectors to your facility. An increase in complex inspections will likely lead to more thorough examinations into workplace safety. Additionally, fines for non-compliance will rise sharply next year.

OSHA has already initiated roughly 3,000 inspections based on new reporting requirements that came into effect at the start of 2015, as Deputy Director of OSHA’s Enforcement Programs, Patrick Kapust, has stated. OSHA’s revised Injury and Illness Recording and Reporting regulation requires employers to report all employee hospitalizations, amputations or losses of an eye within 24 hours to OSHA. Nimonik reported about the change in September 2014 here.

As Jon Hyman recounts in his Ohio OSHA Law Blog, once OSHA comes to investigate an accident or injury, inspectors can cite the operation for any non-compliance issue they discover, even if the citation is unrelated to the reported accident.

Employers should also be aware that OSHA intends to conduct a greater number of complex inspections. The Administration has announced that it will be changing the way it strategically plans for inspections by “weighing” complex inspections with “Enforcement Units.” This weighing policy will allow the Administration to plan for more inspections “requiring greater resources — such as those involving musculoskeletal disorders, chemical exposures, workplace violence, and process safety management violations.” Although OSHA has not stated outright that employers can expect more thorough inspections in the future, the implication is clear.

OSHA’s fines for non-compliance are set to rise dramatically. Congress recently passed the Bipartisan Budget Act of 2015, which included a provision to index fines under the Occupational Safety and Health Act of 1970 annually for inflation. OSHA’s fines have been static since 1990, so the coming “catch up,” yet to be officially determined, will likely be nearly an 80% increase on current penalty levels. The current maximum penalty of $7,000 for serious violations could reach approximately $12,500 and the maximum penalty of $70,000 for willful or repeat violations could be set to approximately $125,000. The Bipartisan Budget Act of 2015 orders OSHA to set its new penalties no later than August 1, 2016. More information on the legal background of the new fines is available at Jenner & Block’s law blog here.

An employer’s best strategy to avoid workplace safety and health penalties remains prevention and training, and this is now doubly true. Fortunately, there are many tools to help achieve safety goals and meet compliance requirements. A good place to start is by conducting an internal audit to make sure that facilities meet the standards for OSHA’s top ten most cited violations in 2015. For more thorough internal inspections, Nimonik offers a United States Basic Health and Safety Audit protocol as well as state audit protocols. Nimonik’s mobile auditing platform works on iPhones, iPads or Android devices, and enables auditors to directly mark photographs to explain non-compliance findings, immediately assign responsible persons to address issues, and easily deliver audit reports. Finally, Nimonik’s plain language EHS Legal Updates help employers in diverse industries stay aware of the ever-changing compliance landscape.