On July 13, 2010, Dr. David Michaels, assistant secretary of OSHA, gave important testimony before the House Committee on Education and Labor on the Miner Safety and Health Act of 2010. The proposed legislation, if passed in its current form, would dramatically reform workplace health and safety laws and would provide OSHA with significant enforcement tools, including increased fines and penalties. The act also:
- Requires abatement of serious hazards even if and while the employer contests citations issued for them. Failure to abate notices could carry a penalty of up to $7,000 for each day the hazard goes uncorrected
- Increases penalties for willful or repeat violations that involve a fatality to as much as $250,000
- Provides for inflation adjustments for civil penalties based on increases or decreases in the Consumer Price Index (CPI)
- Changes the burden of proof in criminal provisions from “willfully” to “knowingly”
- Strengthens whistleblower protections
- Increases the existing 30-day deadline for filing an 11(c) complaint to 180 days
- Allows DOL or the complainant to file a civil action for enforcement in a U.S. District Court if employer fails to comply
- Allows employer’s history of violations of section 11(c) as a consideration in assessing civil penalties
Following are excerpts from Dr. Michaels's testimony that outline the major themes and changes proposed by the Minor Safety and Health Act.
Injury/Fatality Snapshot "Every day in this country, 14 workers are killed on the job...What is not publicized are the more than 5,000 other workers killed on the job in America each year, the more than 4 million who are injured, and the thousands more who will become ill or die in later years from present day occupational exposures."
Plan/Prevent/Protect "In April, the Labor Department released its Spring regulatory agenda which includes a new enforcement strategy - Plan/Prevent/Protect - an effort designed to expand and strengthen worker protections through a new OSHA standard that would require not just the best employers, but every employer to implement an Injury and Illness Prevention Program tailored to the actual hazards in that employer's workplace." "
Instead of waiting for an OSHA inspection or a workplace accident to address workplace hazards, employers would be required to create a plan for identifying and remediating hazards, and then to implement this plan." "Essentially, through this common sense rule, also known as "Find and Fix," we will be asking employers to find the safety and health hazards present in their facilities that might injure or kill workers and then fix those hazards."
Required Abatement of Hazards
"Title VII of the Miner Safety and Health Act provides critical amendments to the OSH Act that would increase OSHA's civil and criminal penalties, enhance whistleblower protections and victims' rights, and give OSHA the authority to require abatement of serious hazards even if and while the employer contests citations issued for them." "One of the most significant changes that the Miner Safety and Health Act makes to the OSH Act is the provision that requires abatement of serious, willful, and repeat hazards during the contest period.
Currently, if an employer contests an OSHA citation, that employer is not obligated to correct the hazard during the administrative contest period leaving workers exposed to serious or deadly hazards for months or years after the hazards have been identified." "The Miner Safety and Health Act would enable OSHA to issue failure to abate notices to a workplace with a citation under contest, which would carry a penalty of up to $7,000 for each day the hazard goes uncorrected." "...between FY 1999 and FY 2009, there were 33 contested cases that had a subsequent fatality at the same site prior to the issuance of a final order."
Increase in Fines
"Federal OSHA and state plans combined have just over 2,200 inspectors, which translates to about one compliance officer for every 60,000 workers." "Currently, serious violations - those that pose a substantial probability of death or serious physical harm to workers - are subject to a maximum civil penalty of only $7,000. Let me emphasize that - a violation that causes a "substantial probability of death - or serious physical harm" brings a maximum penalty of only $7,000. Willful and repeated violations carry a maximum penalty of only $70,000." "Congress has increased the OSH Act's monetary penalties only once in 40 years despite inflation during that period. The current penalties do not provide an adequate deterrent. This is apparent when OSHA penalties are compared with penalties that other agencies are allowed to assess."
- The Department of Agriculture is authorized to impose a fine of up to $140,000.
- The Federal Communications Commission can fine a TV or radio station up to $325,000 when a performer curses on air.
- The Environmental Protection Agency can impose a penalty of $270,000 for violations of the Clean Air Act and a penalty of $1 million for attempting to tamper with a public water system.
"Yet, the maximum civil penalty OSHA may impose when a hard-working man or woman is killed on the job - even when the death is caused by a willful violation of an OSHA requirement - is $70,000." "The Miner Safety and Health Act makes much needed increases in both civil and criminal penalties for every type of violation of the OSH Act and would increase penalties for willful or repeat violations that involve a fatality to as much as $250,000."
Automatic Inflation Adjustment of Fines
"...the OSH Act has been exempt from the Federal Civil Penalties Inflation Adjustment Act, so there have not even been increases in OSHA penalties for inflation. This has reduced the real dollar value of OSHA penalties by close to 40%. In order to ensure that the effect of the newly increased penalties does not degrade in the same way, the Miner Safety and Health Act also provides for inflation adjustments for civil penalties based on increases or decreases in the Consumer Price Index (CPI)."
"Criminal penalties in the OSH Act are also inadequate for deterring criminal wrongdoing. Under the OSH Act, criminal penalties are limited to those cases where a willful violation of an OSHA standard results in the death of a worker and to cases of false statements or misrepresentations. The maximum period of incarceration upon conviction for a violation that costs a worker's life is six months in jail, making these willful crimes a misdemeanor." "It is clear that nothing focuses attention like the possibility of going to prison.
Unscrupulous employers who knowingly refuse to comply with safety and health standards as an economic calculus, and cause the death or serious injury of a worker, will think again if there is a chance that they will be incarcerated for ignoring their responsibilities."
Burden of Proof Change
"The Miner Safety and Health Act would amend the criminal provisions of the OSH Act, as it would also amend the Federal Mine Safety and Health Act, to change the burden of proof from "willfully" to "knowingly." "Specifically, Section 706 states that any employer who "knowingly" violates any standard, rule, or order and that violation caused or contributed to the death of any employee is subject to a fine and not more than 10 years in prison. Most federal environmental crimes and most federal regulatory crime use "knowingly," rather than "willfully."
Whistleblower Protections "The OSH Act was one of the first safety and health laws to contain a provision - 11(c) - for protecting employees from discrimination and retaliation when they report safety and health hazards or exercise other rights under the OSH Act." "The Miner Safety and Health Act strengthens whistleblower protections for workers in both mining and general industries. It makes explicit that a worker may not be retaliated against for reporting injuries, illnesses or unsafe conditions to employers or to a safety and health committee, or for refusing to perform a task that the worker reasonably believes could result in serious injury or illness to the worker or to other employees."
"Additionally, the Act increases the existing 30-day deadline for filing an 11(c) complaint to 180 days, bringing 11(c) more in line with most of the other whistleblower statutes enforced by OSHA." "The Miner Safety and Health Act's adoption of the "contributing factor" test for determining when illegal retaliation has occurred is also a significant improvement in 11(c)."
"The private right to enforce an order is another key element of whistleblower protections in the Miner Safety and Health Act, and has been included in most other whistleblower statutes enforced by OSHA. It is critically important that if an employer fails to comply with an order providing relief, either DOL or the complainant be able to file a civil action for enforcement in a U.S. District Court."
"The Miner Safety and Health Act also allows complainants or employers to move their cases to the next stage in the administrative or judicial process if the reviewing entities do not make prompt decisions or rulings." "In addition, the Miner Safety and Health Act amends section 17(j) of the OSH Act to include an employer's history of violations of section 11(c) as a consideration in assessing civil penalties." [OSHA recently launched a new whistleblower Web page]
"The Miner Safety and Health Act would help us in this area by placing into law, for the first time, the right of a victim (injured employee or family member) to meet with OSHA, to receive copies of the citation at no cost, to be informed of any notice of contest, and to appear and make a statement during settlement negotiations before an agreement is made to withdraw or modify a citation."
The Act also requires the Secretary to designate at least one employee at each OSHA area office to serve as a family liaison...The last thing we want is to repeat situations when family members, like Miss Tonya Ford who testified before this Committee in April, find out about the tragic circumstances of their loved one's death from the media and not from OSHA." You can read Dr. Michaels's entire testimony on OSHA's website.