This rulemaking would make adjustments to the penalty rule to more effectively use Oregon OSHA’s existing penalty authority. Both nationally and at state levels, it has been suggested that Oregon OSHA penalties are not as effective as they might be in promoting health and safety in the workplace. The proposal grows not out of a desire to increase penalties but is instead an effort to develop a more effective approach to use penalties to encourage employers to comply with safety and health rules.

That is how OR-OSHA recently announced their proposed rulemaking to modify how penalty amounts are calculated.  The proposal calls for 6 significant changes to their existing method of penalty assessment. The list below is taken from the original announcement and is condensed for this article.  Full text at http://www.orosha.org/pdf/notices/proposed2011/div1penalties_ltr.pdf

1. Increasing the difference between small employer and large employer penalties.  

-The change to increase the difference between small employer and large employer penalties is proposed as a way to better motivate larger employers. The current penalty structure may motivate the small employer but is unlikely to motivate the larger employer to the same degree.

2. Reduce penalty amounts for employers who demonstrate “good faith” efforts.

-An assessment of the employer’s “good faith” efforts would allow enforcement officers to better reflect the overall commitment of a company to safety and health. It would allow for a reduction to the base penalty amount in recognition of an employer’s efforts put forth before the inspection.

3. Eliminate reducing penalty amounts for immediate correction of violations.  

-The current practice of providing a reduction in penalties for employers who immediately abate violations provides an incentive for employers to reduce employee exposure at the time of the inspection. The proposed change takes into account that correction of a violation is already an employer obligation and should take place without the incentive of a penalty reduction. It may even be argued that failure to abate violations prior to an inspection represents a lack of good faith effort on the part of the employer. 

4. Change in penalty reduction for employers’ injury and illness history.

-Currently a 35% penalty reduction is given to employers with a better-than-average history of injuries and illnesses. The new proposal is to reduce that adjustment to 10%. 

5. Increase to the base penalty amount for death violations. OR-OSHA uses a probability / severity matrix to establish penalty amounts.

-The base penalty would increase from $1,500 to $2,100 for violations assessed as Low/Death. Medium/Death would increase from $2,500 to $3,000 and High/Death violations from $5,000 to $7,000. The increase provides a stronger incentive for employers to put forth additional compliance efforts.

6. Changing definition of a Repeat violation to focus on behavior, rather than on technical issues related to the code.

-The proposed change would more clearly identify that a Repeat violation must be a second violation that is substantially similar to the previously cited violation.

These proposed changes would clearly have an impact on all of our contractors, regardless of size.  Public hearings are scheduled for 10:00 am on December 7th, at OSHA’s Portland Field Office.  1750 NW Naito Parkway, Suite 112.  Contact me if you have any questions regarding these proposed changes.