OSHA Targets 'Recalcitrant Employers'

Scarcely two months after a PBS Frontline/New York Times series that linked weak OSHA enforcement to the death of eight workers by a single company, both Congress and the administration have launched proposals to address the problem.

OSHA announced a new "Enhanced Enforcement Policy" (EEP) designed to crack down on employers who have received "high gravity" citations.

Sen. Jon Corzine, D-NJ, plans to introduce legislation that would make it a felony punishable by up to 10 years in prison to cause the death of a worker through a willful violation of OSHA regulations. Under existing law such an offense is treated as a misdemeanor with a maximum penalty of six months.

In a March 12 memo to regional administrators, OSHA Administrator John Henshaw laid out the elements of the EEP:

  • Follow-up inspections for high gravity citation cases;
  • Targeted inspections for other establishments of employers who have high gravity citations;
  • Increased public awareness of OSHA enforcement;
  • Enhanced settlement provisions;
  • Companies that violate final Review Commission orders to abate violations may be held in contempt of court.

Until now, when an establishment is a corporate subsidiary OSHA has not recorded the name of the parent company, nor has the agency tracked the violation history of the corporate employer as a whole.

"In general I think it [EEP] is a good policy decision," commented Pat Tyson, a former OSHA administrator in the Reagan administration who is now a labor lawyer in Atlanta. "We have to see, though, how it will operate to make sure they haven't gone too far [by making] everyone is a 'recalcitrant employer.'"

One of the most significant features of the new policy is what may happen if a company receives a high gravity citation and has other facilities on OSHA's Site Specific Targeting (SST) list.

"The policy seems to say that if a company has other sites on SST, they get kicked up to the front of the list," Tyson explained.

The president of the American Society of Safety Engineers, Mark Hansen, called the new OSHA policy "an encouraging development." He added that because circumstances vary from case to case, even though safety professionals know from an employer's attitude and history of injuries when a company doesn't care, it can be difficult to define this and enforce it legally.

In a March 20 letter to Henshaw, Sen. Corzine asked OSHA's support for his legislation beefing up penalties for those whose willful violation of OSHA rules causes a workplace fatality. "Those guilty of such violations," Corzine wrote, "are punishable by a maximum sentence lower than one can expect for illegally transporting dentures across state lines."

At press time, OSHA had not taken a position on the proposal and had not responded to Corzine's letter.

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