OHSA violations may be criminal under Congress plan

By Louis A. Ferreira
Stoel Rives LLP, Attorneys at Law
Congress has proposed legislation that would amend the Occupational Safety and Health Act of 1970 to increase both civil and criminal penalties, expand coverage, and create new obligations for employers. Congress has not acted recently on the bill, named the “Protecting America’s Workers Act,” but employers should expect action sometime in the new year.

Willful violations of OSHA that result in the death of a worker would be a felony punishable by up to 10 years in prison, while willful violations resulting in serious bodily injury would be a felony punishable by up to five years in prison. Currently, the criminal penalty for a willful violations resulting in death is imprisonment for 1 year. There is no criminal penalty under the existing act for a serious bodily injury resulting from a willful violation. In addition, the maximum civil penalties in all OSHA violation categories would increase, and would be adjusted periodically according to the Consumer Price Index.

Oregon-OSHA administers its own regulations for most employers in the state but adopts standards and penalties at least as stringent as federal OSHA. In other words, if federal OSHA standards are changed, these impacts will be enforced in Oregon in short order. Employers should be concerned about the scope of these changes because like most legislation, the devil is in the details of how the law is changed. For instance, a willful violation of an OSHA standard does not necessarily require an intentional decision to violate the regulation. A willful violation is defined to exist where an employer or supervisor “recklessly” disregards the requirements of a regulation. Knowledge of the regulation is usually not required it the employer or supervisor should have known of the regulation or standard.

Additionally, employers would be prohibited from adopting or implementing policies or practices that discourage reporting work-related injuries or illnesses, or that discriminate or provide adverse action against any employee reporting such injury or illness; and reducing wages or employee benefits while employees participate in or aid workplace inspections

In other words, the employer would have to compensate employees for their time in assisting an OSHA inspector to discover violations in the workplace and these changes may prohibit certain safety reward programs that create incentives (in OSHA’s opinion) to not report injuries.

Under the new law, an employee would be allowed to refrain from performing certain duties if that employee has reason to believe the performance would result in serious injury to him or herself; and meet with the Department of Labor before the issuance of citations and to participate in settlement negotiations by making a statement to the parties involved in those negotiations, if that employee has sustained a work-related injury or illness that is the subject of an investigation.

Identical bills are being considered in the House of Representatives and the Senate (where Oregon Senator Jeff Merkley is a cosponsor). The bills have not moved out of congressional committees, but stay tuned.

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