President Joe Biden is poised to step up OSHA's enforcement program, with employers bracing for heavier penalties and additional inspections including but not limited to cases involving the COVID-19 pandemic, just as the agency is finalizing an action to raise its statutory maximum penalties for enforcement actions in 2021.
While Biden has yet to issue a formal order to the Labor Department or OSHA telling regulators to step up their scrutiny of private workplaces, such a directive is likely imminent -- whether formal or informal -- given the new president's vows during and after the 2020 campaign to "direct OSHA to enforce worker safety requirements, target the worst violators, and work to increase the number of OSHA inspectors to get the job done."
His agenda for the agency includes bolstering its inspection staff, which he has said is "at its lowest level since 1975," along with the expected release of an emergency temporary standard for the coronavirus that will set enforceable nationwide standards for infection control for the first time.
And under an OSHA memo issued earlier this month, employers cited for violations of those standards will face higher penalties than in 2020, thanks to the annual increase in the OSH Act's statutory maximums to account for inflation.
That adjustment raises the maximum penalty for most violations, including those classified as "serious" and "other than serious," from $12,919 to $13,072, including the amount assessed per day for failure to abate a previously identified violation.
Willful and repeated violations will be subject to maximum penalties of $136,532, up from $134,937 in 2020.
And violations subject to modification based on their "gravity" -- a formula that accounts for both the severity of the violation and its likelihood -- will face a minimum of $5,851 for serious violations and $1,000 for other than serious incidents with a higher probability.
However, even with the Biden OSHA expected to step up enforcement both during the pandemic and in the long term, it could still face hurdles to actually imposing those penalties.
One such hurdle is the current membership of the independent Occupational Safety and Health Review Commission (OSHRC), which has a conservative majority and has been critical of OSHA enforcement actions it sees as overly aggressive or based on too-broad readings of regulations -- though that trend could reverse itself after the term of current Chairman James J. Sullivan Jr., a Republican appointee, ends on April 27.
Employers have welcomed what they see as a trend in recent OSHRC decisions under the current membership that have limited OSHA's discretion on enforcement action. The recent decisions have taken a narrow view of the agency's standards for machine guarding and safe storage practices, while also giving employers more leeway to correct errors in the administrative process of appealing penalties to the panel.
During a recent webinar on the incoming Biden OSHA, Conn Maciel Carey attorney Aaron Gelb urged employers to "push back" against enforcement actions using those and other decisions as precedent.