Although it seems OSHA has been in hibernation from inspecting manufacturing employers, the agency has turned its attention toward construction-industry inspections, targeted employers with high workers' compensation injury rates and expanded its legal authority.
Penalize the Bad Employers on a Per-Employee Basis
The workplace facts were bad, maybe the worst OSHA has seen. Eric K. Ho, acting as an individual, purchased a defunct hospital and adjacent medical office building in Houston for the purpose of developing the property into residential housing. Ho was aware that asbestos was present because a broker gave him a copy of an environmental study identifying asbestos fireproofing, floor tiles and related materials. The study contained a warning that such materials could not be disturbed without the use of licensed asbestos abatement workers using proper procedures, respirators and protective clothing.
In spite of the warning, Ho hired two construction workers, one of whom hired 11 illegal immigrants, to remove the asbestos. No adequate protective equipment or training, as required under OSHA's construction asbestos standards, was given to these workers. A city inspector discovered the unsafe conditions and issued a stop-work order, but the work continued at night with the workers locked in. When a gas explosion occurred causing serious injuries to three workers, OSHA inspected, cited and proposed $1.48 million in penalties, based upon a per employee-exposed new penalty theory for egregious violating employers.
The OSHA Review Commission rejected the per-employee penalty basis and reduced the penalties to $658,000. OSHA has appealed the case to the Fifth Circuit U.S. Court of Appeals, seeking per-employee exposed-fines authority—even though no standard or legislative history of the OSHA law supports such a penalty multiplier basis.
Normally, OSHA is only allowed one penalty for a violation of a standard. The only time OSHA has been allowed to multiply penalties for each employer violation is on a per-instance basis where the standard called for individual employee-type compliance such as the recordkeeping and lead medical removal protection standards which read:
1) Enter each recordable injury or illness on the log.
2) Remove an employee from work after exposure to lead at or above the action level.
These standards were interpreted to permit OSHA to cite as many violations as there are failures to record or remove.
The Ho issue in the appeals courts is likely to turn on the wording of the standard—is it a single cause of conduct the employer failed to do (which nearly all OSHA standards are) or is it a per instance prohibition of individual acts?
DART Inspection Priority Program
About 4000 high-hazard worksites have been identified for inspection under OSHA's Site Specific Targeting program for 2004. This year's program initially targets sites that reported 15 or more injuries or illnesses resulting in days away from work, restricted work activity or job transfer for every 100 full-time workers (known as the DART rate). The list also includes sites that have a days-away-from-work injury and illness rate of 10 or higher. The program stems from OSHA's Data Initiative for 2003 that surveyed approximately 80,000 employers to attain injury and illness data for 2002.
OSHA is targeting egregious employers that have received high-gravity willful citations (lockout/tagout, trenching, fall protection, etc.) or committed multiple serious violations. Under this enhanced enforcement program, when OSHA sees a lax corporate-wide approach to employee safety and health, it may seek to inspect other plants or workplaces of the same employer.
Unsuccessful Attempt to Expand the Liability of Parent Companies
Following two electrocution deaths at a corporation's subsidiary, L.E.Myers Co., OSHA triggered the filing of criminal charges against the parent company, MYR Group, Inc. The basis? An alleged willful failure by the parent corporation to adequately train the two deceased workers in electrical safety practices.
Federal District Judge Elaine Bucklo dismissed the government's argument. She noted that the cited standards require only the actual employer to ensure its workers are trained. MYR Group, which was not the worker's employer, could not have willfully violated the cited standards and thus could not be held criminally liable for the violations, the judge held. The 7th Circuit U.S. Court of Appeals agreed with Judge Bucklo and released the parent company. OSHA will continue to attempt to reach multiple employers for duplicative penalties following fatal accidents.
Greater Settlement Demands
Under its Priority Enforcement Program, the agency plans to seek enhanced settlement agreement promises such as:
• Requiring an employer to hire a consultant to develop a process to implement an effective safety and health program with management supporting the facility;
• Applying the settlement agreement compliance company-wide;
• In construction and where appropriate in general industry, using settlement agreements to obtain from employers a list of other job sites;
• Requiring the employer to submit its log of occupational injuries and illnesses on a quarterly basis and to consent to OSHA conducting a inspection based on the report;
• Requiring the employer to notify the area office of any injury or illness requiring medical attention, consenting to subsequent OSHA inspections; and
• Obtaining employer consent to entry of a court enforcement order under Section 11(b) of the OSH Act.