What to Expect from OSHA in 2016: Important New Clues

As 2015 draws to a close, we are beginning to see new indicators of what to expect from OSHA in 2016. At the top of the list is an agreement between the Department of Labor (DOL) and the Department of Justice (DOJ) which will prioritize pursuing criminal charges against employers (potentially including EHS professionals) who willfully lie or mislead inspectors about matters related to employee safety.

According to the new DOJ/DOL memorandum:

Prosecutors can make enforcement meaningful by charging other serious offenses that often occur in association with OSH Act violations — including false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes. With penalties ranging from 5 to 20 years’ incarceration, plus significant tines, these felony provisions provide additional important tools to deter and punish workplace safety crimes.

The memorandum — dated yesterday — also says that the Environmental Crimes Section of the Environment and Natural Resources Division has trained “hundreds” of inspectors to recognize and document prosecutable offenses, and that it would be providing a designated Criminal Coordinator from the DOL to work with local U.S. district attorneys on prosecuting these crimes.

This is a strong indicator that OSHA and other governmental entities are seeking to increase the capacity by which employers can be held accountable for criminal violations that put workers in danger. OSHA is making clear that — above and beyond being subject to an OSHA citation — violations now have the potential to become a criminal matter. OSHA wants to show that it “has teeth” and will hold violators accountable.

Depending on how frequently OSHA chooses to exercise this new power, this may signal a powerful shift in the industry in the direction holding specific people — not just corporations — liable for violations of the law. There is some evidence that OSHA is already moving in this direction. Earlier this month a supervisor at a roofing contractor in Philadelphia pled guilty to violating OSHA regulations after an employee died in a fall while repairing a church roof. The supervisor had not provided required fall protection, and then repeatedly made false statements to investigators saying that he had.

“No penalty can bring back the life of this employee,” said OSHA head Dr. David Michaels in a prepared statement on the prosecution, “but the outcome in this case will send a clear message that when employers blatantly and willfully ignore worker safety and health responsibilities, resulting in death or serious injury to workers, or lie to or obstruct OSHA investigators, we will pursue enforcement to the fullest extent of the law, including criminal prosecution.”

Another indicator of what to expect from OSHA in 2016 emerged this week as the U.S. Congress released a new appropriations bill. The bill gives OSHA a budget of $552,787,000 for the coming fiscal year, which is comparable to the budget amount allocated to OSHA in the previous two fiscal years — so OSHA will not grow, but neither will it shrink. The bill also specifies that roughly 20% of the new budget may be used to provide grants to individual states.

Additionally, the bill is poised to impact OSHA’s pursuit of a new, more stringent rule on silica. The new bill eliminates previous requirements seeking to lengthen the rulemaking process on a potential new silica standard, meaning that OSHA will be free to seek a new standard sooner rather than later.

Finally, you’ll remember back in October, we reported that OSHA was moving to give its inspectors greater latitude to focus on more complex inspections by using a goal system that would reward inspectors for in-depth inspections as much as for overall quantity of inspections. In 2016, you can expect OSHA to continue to move toward this “quality instead of quantity” inspection model. 

Though its budget may not be expanding, OSHA is evidently looking to become more powerful in 2016 by forging alliances that allow it to back up its enforcement with meaningful consequences for violators. Clearly, EHS professionals should be aware of this, and continue to monitor OSHA’s progress in the coming year.