For the first time in 25 years, the maximum fines for OSHA violations are set to significantly increase this year. A provision in the budget bill passed by Congress and signed into law by President Obama last year included a provision in the “Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015” that would allow a one-time catch up adjustment, with subsequent increases tied to year-over-year inflation increases. This strikes down the exemption in the Federal Civil Penalties Inflation Adjustment Act of 1990 that prohibited OSHA from increasing penalties due to inflation.
The adjustment will be based on the percentage increase in the Consumer Price Index (CPI) from October 1990 to October 2015 which was roughly 78.16%. This means that the current maximum penalty for a willful violation or a repeat violation would increase from $70,000 to $126,000. Maximum penalties for serious violations and other than serious violations would increase from $7,000 to $12,471.
OSHA has been directed to issue an interim final rule on the rate increase. The increased fines must take effect by August 1, 2016. For subsequent years, the adjustments must be made by mid-January. OSHA could increase penalties less than the maximum allowed amount if they believe that it would have a negative economic impact and the Office of Management and Budget agrees. This seems unlikely given the fact that penalties have not increased in a quarter of a century and the agency has been pushing to increase penalties for years.
The expected increase in maximum penalties may seem excessive, but had OSHA been allowed to increase fines each year based on inflation, the agency would have been making those incremental increases annually. Instead of focusing on the increases, construction firms should be focusing on implementing and enforcing safety programs that will prevent them from facing fines when inspection time comes around.
OSHA has a full slate of priorities and rulemakings coming down the pike this year. Here’s a brief rundown of their rulemaking schedule for 2016 that will affect the construction industry. The anticipated dates for publishing rules came out last November and are subject to change.
Occupational Exposure to Crystalline Silica
Final Rule expected in February 2016
In the proposed rule, the construction standard would reduce the current permissible exposure limit (PEL) of respirable crystalline silica which was established in 1971 from 250 micrograms per cubic meter averaged over an 8-hour day down to 50 micrograms per cubic meter. OSHA claims the proposed rule would save the lives of 560 construction workers and prevent 1,080 cases of silicosis a year. It’s estimated that approximately 1.85 million construction workers are exposed to respirable crystalline silica at their workplace.
This is probably the most controversial rule OSHA plans to finalize this year. They received over 1,700 comments from the public and heard testimony from more than 200 stakeholders at a public hearing.
The final rule was submitted to the Office of Management and Budget (OMB) for review and clearance back on December 21, 2015. Approval from the OMB is one of the final steps in the rulemaking process and reviews are limited to 90 days, but can be extended.
Some of the provisions in the final rule have changed from the original proposed rule. The final rule probably won’t be published in February, but we should see it before the end of the year.
Improve Tracking of Workplace Injuries and Illnesses
Final Rule expected in March 2016
The proposed rule would require employers to electronically submit records on employee injuries and illnesses that would be available to the public through a searchable online database. These reports would have to be submitted on either an annual or quarterly basis based on the number of employees. The goal of the rule is to improve the availability and accuracy of records and statistics on occupational injuries and illnesses.
The final rule was submitted to the OMB back on October 5, 2015 and is still pending review.
Updating OSHA Standards Based on National Consensus Standards Eye & Face Protection
Final Rule expected in March 2016
Personal Protective Equipment (PPE) standards for the construction industry refer to outdated consensus standards from the American National Standards Institute (ANSI). In addition to changing language in the construction standards for eye and face protection to match up with general industry standards, it also deletes some requirements since they are already covered in the ANSI standards being adopted.
The final rules hasn’t been submitted to the OMB yet, so the final rule probably won’t make the March deadline.
Crane Operator Qualification in Construction
Proposed Rule expected in March 2016
A previous final rule on crane operation in construction was issued that established third party certification was adequate for operator safety. Stakeholders argued that certification wasn’t enough to establish whether or not an operator was qualified to safely operate a crane. The final rule is expected to layout clear benchmarks for employers to use to determine crane operator competence.
OSHA is also planning to make some mostly clerical corrections to its Cranes and Derricks in Construction Standard with a Proposed Rule expected in April 2016. A Proposed Rule is expected in May 2016 to identify unnecessary or duplicated provisions or requirements with a main focus on construction industry standards. OSHA is also in the prerule stage for issuing standards on preventing backover injuries and fatalities. Backovers contribute to two of the Fatal Four in construction, struck-by and caught-between injuries, and the agency is looking to see if rulemaking could reduce the number of injuries and deaths.