OSHA Compliance Manual

Penalties

In order to determine the amount of a penalty, the violation itself must first be categorized. Violations can be classified as serious, other-than-serious, willful, repeat, or failure to abate. Once a violation is classified, the gravity of the violation is considered in order to determine a "base penalty" amount. The base penalty may then be adjusted downward when other factors such as size, good faith, and violation history of the employer are considered.

The four adjustment factors used by OSHA include:

• Gravity of violation - Gravity is the primary consideration in determining penalty amounts. It is the basis for calculating the basic penalty for both serious and other violations. Gravity of a violation is based on the severity of the injury or illness which could result from the alleged violation and the probability that an injury or illness could occur as a result of the alleged violation.

• Size adjustment factor - A maximum penalty reduction of 60 percent will be given to employers with one to 25 workers; 40 percent for employers with 26 to 100 workers; and 20 percent for employers with 101 to 250 workers. Employers with more than 250 workers will not receive a penalty reduction for size.

• Good faith adjustment - There may be up to an additional 25 percent reduction for evidence that the employer is making a good faith effort to provide a safe and healthy workplace. In order to qualify for the full 25 percent "good faith" reduction, an employer must have a written and implemented safety and health program such as is described in OSHA's voluntary "Safety and Health Management Guidelines" and has deficiencies that are only incidental. A 15 percent reduction is normally given to an employer that has a documentable and effective safety and health program, but with more than only incidental deficiencies. No reduction is given to employers with no safety and health program or where a willful violation is found.

• History adjustment - A 10 percent reduction may be given if the employer has not been cited by OSHA for any serious, willful, or repeat violations in the past three years.

The computation of base penalties for the various violations is based on the following OSHA guidelines.

• Serious violations - A serious violation is one where there is a substantial probability that death or serious physical harm could result, and the employer knew or should have known of the hazard. The typical range of proposed penalties for serious violations is $1500 to $5000. The Regional Administrator does have the discretion, however, to propose a penalty fine of up to $7000 if warranted.

• The severity of the violation and the probability of an injury or illness occurring are then considered in order to determine the dollar amount of the proposed penalty. For example, the base penalty for a severe serious violation where the probability of an injury or illness occurring is great is $5000. A base penalty of $2500 is proposed, however, if the serious violation is severe but the probability of an injury or illness occurring as a result of the violation is low.

• Penalties for serious violations are only adjusted downward for size and violation history of the employer.

• Other-than-serious violations - This is a violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm. No penalties are usually proposed for other-than-serious violations which have a low probability of resulting in an injury or illness. A base penalty of $1000 is used if the violation has a greater probability of resulting in an injury or illness. Again, the Regional Administrator does have some discretion to increase this base penalty up to $7000 if he or she feels it is warranted.

  04/02 Violations to posting requirements are usually assessed as follows:

  • $1000 for failure to post the OSHA employee job safety and health notice (Form 2203 or 3165).

  • $1000 for failure to post the annual summary of workplace injuries and illnesses (OSHA 300A).

  • $3000 for failure to post an OSHA citation in the workplace.

  04/02 Violations to recordkeeping requirements are usually assessed as follows:

  • $1000 for each year that the OSHA 300 Log was not properly kept and/or for each OSHA 300A that was not filled out (up to $7000).

  • $5000 to $7000 for failure to report to OSHA within eight hours any incident involving a fatality or requiring the hospitalization of three or more employees.

• Willful violations - A willful violation is one which the employer intentionally and knowingly commits. For a willful violation, OSHA may assess a civil penalty of not more than $70,000 but not less than $5,000 for each violation.

• Repeat violations - A repeat violation is a violation of any standard, regulation, rule, or order where, upon reinspection, a substantially similar violation is found and the original citation has become a final order. Repeat violations may be assessed a civil penalty of not more than $70,000 for each violation. The penalty is adjusted depending on how many workers are employed.

• Failure to abate - Failure to correct a prior violation within the prescribed abatement period could result in a penalty for each day the violation continues beyond the abatement date. The daily penalty is usually equal to the amount of the initial penalty with an adjustment for size only.

All penalty amounts issued with a citation are proposed. Employers may contest the penalty amount as well as the citation within the 15 day contest period. After that, the penalty may be adjudicated by the Occupational Safety and Health Review Commission or OSHA may negotiate with the employer to settle for a reduced penalty amount if this will lead to speedy abatement of the hazard.

Additional violations for which citations and proposed penalties may be issued are as follows:

• Falsifying records, reports or applications can bring a fine of $10,000 or up to six months in jail, or both.

• Assaulting a compliance officer, or otherwise resisting, opposing, intimidating or interfering with a compliance officer in the performance of his or her duties is a criminal offense and is subject to a fine of not more than $5,000 and imprisonment for not more than three years.

Citation and penalty procedures may differ somewhat in states with their own occupational safety and health programs.

Trade Secrets

Trade secrets observed by the compliance officer will be kept confidential. An inspector who releases confidential information without authorization is subject to a $1,000 fine and/or one year in jail. The employer may require that the employee representative have confidential clearance for any area in question.

Consulting with Employees

Employees are consulted during the inspection tour. The compliance officer may stop and question workers, in private, about safety and health conditions and practices in their workplaces. While talking with employees, the compliance officer makes every effort to minimize any work interruptions. Each employee is protected, under the OSH Act, from discrimination for exercising his or her safety and health rights.

Recordkeeping

OSHA places special importance on posting and recordkeeping. The compliance officer will inspect records of deaths, injuries, and illnesses which the employer is required to keep. The officer will check to see that a copy of the totals from the last page of OSHA 200 Log or the OSHA 300A Summary have been posted and that the OSHA 2203 or OSHA 3165 workplace poster is prominently displayed. Where records of employee exposure to toxic substances and harmful physical agents have been required, they are also examined for compliance with the recordkeeping requirements.

The compliance officer also explains that while the following items are not required for all OSHA standards they should be recorded to accurately monitor and assess occupational hazards.

Initial and periodic monitoring for operations involving exposure, including:

• Date of measurement;

• Sampling and analytical methods used and evidence of their accuracy;

• Number, duration, and results of samples taken;

• Type of respiratory protective devices worn; and

• Name, social security number, and the results of all employee exposure measurements.

This record should be kept for 30 years.

Employee physical/medical examinations, including:

• Name and social security number of the employee;

• Physician's written opinions;

• Any employee medical complaints related to exposure to toxic substances; and

• Information provided to the examining physician.

These records should be maintained for the duration of employment plus 30 years.

Employee training records should be kept for one year beyond the last date of employment of that employee.

Communicating Hazards

The compliance officer also explains the requirements of the Hazard Communication Standard which requires employers to establish a written, comprehensive hazard communication program covering provisions for container labeling, material safety data sheets, and an employee training program. The program must contain a list of the hazardous chemicals in each work area and the means the employer will use to inform employees of the hazards of non-routine tasks.

Unsafe Workplace Conditions

During the course of the inspection, the compliance officer will point out to the employer any unsafe or unhealthful working conditions observed. At the same time, the compliance officer will discuss possible corrective action if the employer so desires.

Some apparent violations detected by the compliance officer can be corrected immediately. When they are corrected on the spot, the compliance officer records such corrections to help in judging the employer's good faith in compliance. Even though corrected, however, the apparent violations may still serve as the basis for a citation and, if appropriate, a notice of proposed penalty.

An inspection tour may cover part or all of an establishment, even if the inspection resulted from a specific complaint, fatality or catastrophe

Inspector's Credentials

When the OSHA compliance officer arrives at the establishment, he or she displays official credentials and asks to meet an appropriate employer representative. An OSHA compliance officer carries U.S. Department of Labor credentials bearing his or her photograph and a serial number that can be verified by calling the nearest OSHA office. Employers should always ask to see the officer's credentials.

OSHA compliance officers may not collect a penalty at the time of inspection or promote the sale of a product or service at any time; anyone who attempts to do so is bogus and the FBI or local law enforcement officials should be contacted immediately.

Opening Conference

In the opening conference the compliance officer explains how the establishment was selected and determines whether it will be subject to a comprehensive safety inspection. The compliance officer also will ascertain whether an OSHA-funded consultation program is in progress or whether the facility is pursuing or has received an inspection exemption; if so, the inspection may be terminated.

The purpose of the visit, the scope of the inspection, and the standards that apply are explained and the employer is given copies of applicable safety and health standards as well as a copy of any employee complaint that may be involved (with the employee's name deleted, if the employee has requested anonymity).

The employer is asked to select an employer representative to accompany the compliance officer during the inspection.

An authorized employee representative also is given the opportunity to attend the opening conference and to accompany the compliance officer during the inspection. If the employees are represented by a recognized bargaining agent, the agent ordinarily will designate the employee representative to accompany the compliance officer. Similarly, if there is a plant safety committee, the employee members of that committee will designate the employee representative (in the absence of a recognized bargaining agent).

Where neither employee group exists, the employee representative may be selected by the employees themselves, or the compliance officer may determine if any employee suitably represents the interest of other employees. Under no circumstances may the employer select the employee representative for the walk-around.

An employee representative does not have to be present for each inspection. However, where there is no authorized employee representative, the compliance officer must consult with a reasonable number of employees concerning safety and health matters in the workplace