Based on the rhetoric from the 2016 presidential campaign trail, it was reasonable for Industry to anticipate OSHA enforcement under a Trump Administration to contract significantly from the aggressive enforcement model employed by Pres. Obama’s OSHA. Informed by the enforcement philosophies of past Republican administrations, the expectation was that a Pres. Trump / Sec. Acosta OSHA would scale back enforcement, favor compliance assistance, slash OSHA’s budget and staff to limit enforcement, retire national and local emphasis enforcement programs, revise enforcement policies that inflate civil penalties, and otherwise retool its approach to ease the regulatory burden on employers.
The reality, however, is that OSHA during the Trump-era has not backed down from its enforcement mission. Quite to the contrary, relevant enforcement data reveals enforcement creep. With still no Trump-appointed Assistant Secretary of Labor for OSHA in place nearly two years into the Trump Administration, career OSHA staff have considerable influence over the direction OSHA is steering, and that is why little has changed, and why change may not be on the near horizon.
Here are some of the key ways that OSHA enforcement is hardly distinguishable two years into the Trump Administration from OSHA during the Obama Administration:
OSHA’s FY19 budget is increasing by $5M from the end of the Obama-era (nearly $560M total)
The number of employees at OSHA dipped at the start of the Trump Administration, but it has restored to roughly the same as the end of the Obama-era (approx. 2,000)
The number of National and Local Emphasis Enforcement Programs remains essentially the same (approx. 150 Local/Regional Emphasis Programs and 9 National Emphasis Programs), including new or retooled NEPs for petroleum refineries and trenching
The total number of fed OSHA inspections actually increased from 31,948 in FY2016 to 32,396 in FY2017 (the first year over year increase in the number of inspections in nearly a decade)
On April 11th, Andrew J. Sommer and Eric J. Conn of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding “New Cal/OSHA Issues that California Employers Must Understand.”
The state of California’s Division of Occupational Safety and Health (DOSH), better known as Cal/OSHA, is perhaps the most aggressive and enforcement-heavy approved state OSH Program in the nation. California employers face a host of requirements that other employers around the country do not. Likewise, the Cal/OSHA inspection and appeal process creates several unique landmines for California employers.
In light of new Cal/OSHA standards taking effect in 2017 and others on the horizon, this is the perfect time for companies doing business in the Golden State to revamp their safety programs and take necessary steps to ensure compliance with the latest Cal/OSHA safety regulations.
Participants in this complimentary webinar learned about the following:
Cal/OSHA’s New Repeat Violation Rule
Cal/OSHA’s New Workplace Violence Rule for Health Care Facilities
New Law Mandating the Development of Heat Illness Prevention Regulations for Indoor Workplaces
The state of California’s Division of Occupational Safety and Health (DOSH), better known as Cal/OSHA, is perhaps the most aggressive and enforcement heavy approved state OSH program in the country. Cal/OSHA faces many fewer bureaucratic and political obstacles than fed OSHA in developing new rules (really legislation). Accordingly, California employers face a host of requirements that employers around the country do not. Likewise, the Cal/OSHA inspection and appeal process creates several unique landmines for California employers.
It has been five years since OSHA launched its Severe Violator Enforcement Program (“SVEP”), and two years since an agency White Paper trumpeted the program’s “strong start” and progress on “key goals.” A closer examination of OSHA’s SVEP data, however, reveals that:
SVEP disproportionately targets small employers;
SVEP cases are contested more often than other OSHA citations;
OSHA has trouble conducting follow-up inspections of small employers, especially those in the construction industry; and
The program fails to reach the recalcitrant employers it was designed to target.
The fact is, SVEP (which succeeded OSHA’s controversial Enhanced Enforcement Program) has shown troubling trends from the start. Not only do the criteria weigh against smaller employers, but the consequences for employers thus labeled are dire, placing them in a precarious position, even before OSHA has proven that the employer violated the law at all, let alone in such an egregious manner as to warrant inclusion in SVEP.
SVEP was instituted to target “enforcement efforts on recalcitrant employers who demonstrate indifference to the health and safety of their employees.” To that end, OSHA created four categories that would land an employer in SVEP. However, over the life of the program, one qualifying category has been invoked predominantly: an employer who has two or more willful, repeat, or failure-to-abate citations related to High Emphasis Hazards (NF-2WRF).
Willful violations are those committed by an employer who knows the applicable standard but intentionally disregards it. Repeat violations have a much lower standard and require no aggravated intent. The employer does not have to know the law or be indifferent to safety.
Through the first several years of SVEP, this NF-2WRF category accounted for nearly 70% of all SVEP cases. On the surface, this suggests that the program is reaching those bad actors, who deliberately flout the law; i.e., employers that have committed multiple willful violations. However, the reality is that only one in four qualifying cases involves any willful violations. More than 75% of this category is based on repeat violations, which, again, do not require any specific or aggravated intent.
Moreover, OSHA reports that nearly 60% of SVEP employers have fewer than 25 total employees, and 75% have fewer than 100. Often, these employers are not “recalcitrant” and have not acted with indifference toward safety or the law. Rather, they generally do not know what OSHA’s vast portfolio of regulations require and/or lack the resources to comply.
An employer is entered into SVEP at the outset of an OSHA case, prior to an opportunity to defend itself and prove wrong OSHA’s alleged violations. Notwithstanding this end run around Constitutional Due Process, once in the program, SVEP employers are immediately subject to:
Today’s OSHA has increased enforcement to levels never seen before, from increased inspections and citations to dramatically higher penalties, from more criminal referrals to a heavy dose of public shaming. It is more important than ever to be prepared. This complimentary webinar series has been designed to give employers the tools they need to avoid becoming an OSHA-enforcement poster child.
We have recorded and will continued to record each of the webinars, and as we move through the year and conduct these webinars, we are pleased to provide links below to the recordings. There are also links below to the registration pages for the remaining webinars in the series. Check out the completed webinars and plan to join us for all or some of the rest of the series.