The U.S. Department of Labor is taking a new look at workplace safety, and employers are in the crosshairs.
“The Biden administration has become much tougher about OSHA (Occupational Safety & Health Administration) regulations,” says Edwin Foulke Jr., a former OSHA head and now a partner in the Atlanta office of Fisher & Phillips. “It has enlarged its staff of inspectors, ramped up enforcement activity and heightened penalty amounts.”
Foulke expects OSHA to become even more aggressive in the coming year. He says employers need to be on their toes for the administration as it looks for ways to cite them – and for large amounts of money.
Cash penalties can be severe. Serious violations can run $15,625 (the amount increases annually with inflation). Willful ones – where an employer acted with plain indifference to worker safety – are pegged at $156,259.
Another trend puts employers in greater danger still. Inspectors are increasing their use of so-called “instance by instance” violations, in which cash penalties are assessed by the number of violations in a set.
“If five people are using a certain machine and that machine is cited for noncompliance with a regulation or standard, the company may receive five citations instead of one,” says Douglas Witte, who represents businesses in labor and employment law matters at the firm Boardman & Clark.
Costliest of all are accidents to third parties.
“Sometimes the harmed individual is not an employee,” says Robert Nichols, partner with the employment law firm Bracewell. “They could be a contractor, a vendor or a member of the public. In such cases the company does not have the protective barrier of workers’ compensation insurance against a lawsuit for full and punitive damages.”
Leading the way
Now is the time to double down on protective policies and procedures. Everything starts at the top of the management pyramid.
“If mid-level managers and supervisors don’t perceive an emphasis on safety from upper management, it’s much less likely they will take the topic seriously,” says William Principe, partner in the Atlanta office of Constangy, Brooks, Smith & Prophete. “And it’s their combined efforts that will create an accident-free workplace.”