Repeat Violations Rise to $124,709 per Violation

OSHA Also Set to Upend Drug Testing Policies in November

Fisher Phillips today issued an advisory to Houston-area employers that the Occupational Safety and Health Administration (OSHA) is increasing the maximum penalties for health and safety violations on August 1 for the first time since 1990. Fisher Phillips is a national management-side labor and employment law firm.

“Employers must be aggressive to avoid opening up their bank accounts to a massive blow as this sharp increase in penalties ups the stakes,” said Collin Warren, partner in the Fisher Phillips Houston office.

The new increase will raise the maximum penalties for:

• Willful or repeated violations to $124,709 per violation from $70,000 per violation.
• Serious violations, violations of posting requirements and other-than-serious violations to $12,471 per violation from $7,000 per violation.
• Failure to abate following an inspection to $12,471 per day beyond the abatement date from $7,000 per day beyond the abatement date.

This drastic jump serves as a one-time opportunity for the penalties to “catch-up” with inflation, according to OSHA. In each subsequent year the penalties will automatically be adjusted based on the Consumer Price Index.

According to Warren, employers should take five steps to avoid facing these increased penalties:

1. Update safety policies based on new and revised laws and regulations.
2. Train supervisors on how to identify and mitigate the risks of violating routine compliance items, as those are what often generate most reported six-figure citations for multi-location employers.
3. Train managers on how to handle OSHA inspections and disasters.
4. Review workplace security and safety for potential hazards and threats.
5. Implement regular self-inspections and document corrections to prevent violations.

“Not only has OSHA substantially increased penalties, but it also plans to implement other significant changes later this year.” said Warren. “Most notably, the agency will roll out its new reporting and recordkeeping rules, which among other things, will upend drug testing procedures following workplace incidents.”

Many employers test employees for drugs following any workplace injuries or incidents, often determining the employee’s eligibility for benefits and possibly future employment. However, as part of OSHA’s recordkeeping and reporting rule taking effect November 1, this common practice likely will be considered retaliatory. According to the agency, these blanket drug testing policies may prevent employees from reporting incidents. As such, employers should only test employees for drugs if they reasonably suspect drugs played a part in the incident and utilize drug testing methods that will identify impairment at the time of the incident.

There are a limited number of exceptions that would allow employers to always test employees following workplace injuries and incidents. Testing will continue to be permitted when a federal or state law requires it, such as the Department of Transportation requiring drug testing following an accident.

“OSHA’s ramped up initiatives and rulemaking processes have rendered its enforcement landscape almost unrecognizable,” said Warren. “We have seen more changes in the past two years than in the preceding 15, and we do not expect the agency to slow down. Employers must stay on top of the agencies agency’s regulatory agenda for new and upcoming regulations to avoid getting caught in OSHA’s crosshairs.”