Happy Holidays and Happy New Year to all of you, and Happy 1st Anniversary to the OSHA Law Update blog. On December 20th, we celebrated our first full year of updates and articles (56 of them) about important OSHA Law topics here on the OSHA Law Update blog. We would hardly have the energy or enthusiasm to keep the OSHA Law Update current if it were not for all of the incredibly positive feedback, comments, and questions that we have received over the year from all of you. Thank you for that.
Just as we did last year, as the clock was winding down on a remarkable year of OSHA enforcement and other activity, it is time to take a look ahead to the new year, and offer our thoughts about what we can all expect from OSHA in 2013. Here is a link to our post from December 2011 in which forecasted 5 important OSHA developments for 2012 (a pretty accurate forecast in retrospect), and here are three developments we expect from OSHA in 2013:
Heavy-handed enforcement will continue to trend up:
During President Obama’s first term in office, OSHA consistently increased enforcement in every measureable way, year over year, and there is every reason to believe that trend will continue. OSHA’s budget increased early in President Obama’s first team, and that allowed OSHA to hire more than 100 new compliance officers. The agency also redirected most of the resources and personnel who had formerly been involved in compliance assistance and cooperative programs into enforcement. As a result of this big increase in enforcement personnel, we saw the number of inspections increase from averages in the mid-30,000’s during the Bush Administration to the mid-40,000’s through President Obama’s first term. Barring a prolonged trip over the Fiscal Cliff and actual implementation of sequestration, the trend of increasing enforcement personnel and increasing inspections will continue.
In addition to more frequent visits from OSHA, the OSHA leadership team also modified its Field Operations Manual for the purpose of driving up average and total penalties per inspection (i.e., by raising minimum penalties, average penalties, and eliminating penalty reductions available for size and safe history). As a result, the average per Serious violation penalty doubled from the Bush Administration (approx. $1,000 per violation) to the end of Obama’s first term (approx. $2,000 per violation). OSHA’s leadership team has expressed a goal of continuing to grow that average to approx. $3,000 per Serious violation. We also watched the frequency of enhanced citations (i.e., Willful and Repeat violations that carry 10x higher penalties) increase at a rate of more than 200%. Those changes, and other aggressive enforcement strategies by OSHA, have resulted in the Agency doubling the total number of “Significant” enforcement actions (cases involving penalties of $100,000 or more), and tripling the number of cases involving total penalties over $1M. That trend is also expected to continue.
The Democratic Party unveiled its Party Platform during President Obama’s Nominating Convention, and offered a glimpse into what we can expect from OSHA in 2013 and beyond.
The platform called for a focus on “continu[ing] to adopt and enforce comprehensive safety standards.” Many dubbed the 2012 a “status quo election,” which is probably right, and because the status quo at OSHA over the past four years has been a trend of increasing enforcement and focused rulemaking, that is precisely what we should expect from OSHA over the next four years.
Specifically, OSHA will continue to aggressively enforce its existing standards (i.e., increasing numbers of inspections, increasing penalties, and increasing publicity related to enforcement actions). We anticipate a doubling down on programs and strategies like:
- “Regulation by Shaming” (i.e., embarrassing and inflammatory enforcement press releases — see our article about Regulation by Shaming in EHS Today);
- Severe Violator Enforcement Program;
- Increasing programmed inspections targeting special emphasis hazards and industries;
- More follow-up inspections and Repeat violations;
- Referring cases to the U.S. Attorney for potential criminal investigations and OSH Act criminal charges;
- More corporate-wide enforcement and settlements; and
- Less flexibility for employers in resolving cases with reasonable settlement positions.
Stalled Rulemaking will pick back up:
As was expected during an election year, we did not see much in the way of Rulemaking activity in 2012. That is expected to change now that the election is behind us, and especially since we are presented with an Administration that does not have to worry about re-election ever again. Accordingly, we will see Rulemaking activity return in areas of high priority for the OSHA leadership team. There are a few rules that are already very close to completion, which we expect will be finalized early in President Obama’s second term. Those include:
- A new Electrical Power Transmission and Distribution standard;
- An updated Walking and Working Surfaces standard (i.e., fall protection); and
- An updated Silica standard.
There are several other important rules that have been on the back burner or were otherwise slow tracked, which will not likely be finalized in 2013, but which we do expect to see move forward at a much more aggressive pace. Those include:
- An Injury & Illness Prevention Program Rule (Dr. Michaels’ highest priority agenda item);
- A Combustible Dust standard;
- Amendments to many of OSHA’s current Permissible Exposure Levels associated with specific regulated chemicals; and
- New Injury & Illness rules that would require employers to report (not record) more incidents directly to OSHA.
Investigation and enforcement of Whistleblower statutes will be aggressive:
OSHA has fallen in love with the huge dollar recoveries it has been able to achieve through Whistleblower actions (especially in comparison to what it believes are civil penalties that are too small for traditional safety and health enforcement). As a result, late in President Obama’s first term, OSHA developed a special office for Whistleblower activities in Washington, DC, and created and filled a new post – Whistleblower Protection Program Director. This development is just one in a string of several over the past few years that signals an increasing investment by OSHA in Whistleblower, which is expected to continue to grow during President Obama’s second term. OSHA enforces the Whistleblower provisions of the OSH Act and 21 other statutes related to reports of alleged violations of various workplace, commercial motor vehicle, airline, nuclear, pipeline, environmental, railroad, public transportation, maritime, consumer product, health care reform, corporate securities, food safety and consumer financial reform regulations. Here is some additional information about OSHA’s Whistleblower Program.