Employers can breathe a sigh of relief for now as it appears that Senate Democrats are no longer pursuing a massive increase to OSHA’s penalties for safety violations. Currently, the maximum fine OSHA can assess against an employer per alleged repeat, willful, or failure-to-abate violations is $145,027. The penalty amount is subject to automatic annual inflation adjustments.
Last year, the U.S. House of Representatives passed a bill that would have dramatically raised the maximum penalty to $700,000 per alleged violation – over a 380% increase from the current cap. However, the most recent update to the reconciliation spending bill still being debated by the U.S. Senate did not mention or include any provisions for raising the cap on civil money penalties for citations issued by OSHA.
Labor and safety groups along with many Democrats have long advocated for higher OSHA fines which they argue will deter safety violations and encourage better employer compliance by reducing or eliminating workplace hazards that could lead to serious injury or death. Despite these good intentions, OSHA regulatory compliance can be extremely complicated and expensive even for large employers and increasing penalties at such a high rate will not necessarily result in better outcomes. In fact, massive fines would most certainly lead to employers being more likely to contest citations in drawn out litigation. This would take away time and resources from actual compliance and would not serve the underlying purposes of the OSH Act.
On the funding front for the agency, Democrats on the U.S. Senate Appropriations Committee have proposed a $68 million dollar increase to OSHA’s fiscal budget for 2023. In total, U.S. Senate Democrats would fund OSHA in 2023 with approximately $679.8 million dollars. While certainly a significant increase from 2022 funding levels, this is considerably less than the $702 million dollars requested by the White House or the $712 million dollar OSHA budget passed by the U.S. House this year.
According to the committee’s bill report, the additional funding is designed to increase OSHA’s critical enforcement activities to inspect the nation’s workplaces to prevent employee injuries and deaths. Under this proposal, all line-items for OSHA’s budget would be increased from 2022 levels. This includes $272 million for enforcement, whistleblower protections at $27.5 million, and standards development at $27.5 million. It is likely that any budget increase for enforcement would be directed to hiring more Compliance Safety and Health Officers (CSHOs) in order to conduct more workplace investigations related to hazards such as heat stress, workplace violence, and ergonomics.
While employers will need to be prepared for an expected rise in OSHA enforcement activity next year, at least for now it does not appear that it will come along with significantly higher penalties.
If you have questions or need assistance on OSHA compliance, inspections and citations, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.