Kerryann Haase and Charmaine Butler, attorneys with Michael Best & Friedrich, say that supporters of occupational safety and health law reform have seized upon the mining changes as an opportunity to attempt passage of comprehensive changes to the Occupational Safety and Health Act before the midterm elections. This bill passed in the House on July 21, 2010, and has been sent to the full House of Representatives for a vote.
The bill increases penalties for the most common classifications of citation under the OSHAct (serious and other than serious) from a maximum of $7,000 to $12,000 per citation item. The bill also increases the penalty for a willful or repeat citation from $70,000 to $120,000. However, if the cited violation caused or contributed to the death of an employee, the penalty maximum can be increased to $50,000 for a serious citation and to $250,000 for a repeat or willful citation. The penalties for serious/other than serious and willful/repeat citations by employers with fewer than 25 employees are capped at $10,000 and $25,000, respectively.
The bill also provides for automatic adjustments to those penalty amounts during the next four years tied to the Consumer Price Index. And Repeat citations can be based on earlier citations for violations of state law, not just the OSHAct or Federal OSHA’s standards and rules.
“One of the most controversial parts of the bill provides criminal penalties, including jail sentences, not just for any employer, but also for any corporate officer or director, which are undefined terms, who knowingly violates a standard, rule or order,” the attorneys write in their report to IWLA members. “These criminal provisions allow for imprisonment for not more than ten years for a first conviction and for not more than twenty years for a second conviction in the event of a fatality.”
For conviction for a violation that resulted in a “serious bodily injury,” the prison term is five years for a first offense and ten years for a second offense.
“If passed, this provision likely would deter corporate officers and directors from participating in any active way in a company’s safety program,” the attorneys conclude. “In many cases, employers contest OSHA citations because they do not agree with OSHA's interpretation or application of a standard or the facts alleged by OSHA as constituting a violation of a standard. In other cases, abatement of the cited hazard may create a yet greater hazard, be infeasible, or put the company out of business. Under the bill, an employer would not be permitted to contest an abatement requirement. As a practical matter, an abatement period is usually very short, and the bill provides that contesting a citation would not delay the due date for abatement.”