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3 Ways OSHA Enforcement Will Change for Employers in 2019

Although the Occupational Safety and Health Administration (OSHA) has recently implemented many employer-favorable changes,* OSHA’s enforcement arm remains active investigating and fining employers. Below are three ways OSHA inspections are changing in 2019:

1. HERE COME THE DRONES

In May 2018, OSHA issued a memo authorizing OSHA compliance officers to use drones to conduct workplace inspections, particularly for areas that are inaccessible or pose a safety risk.

The compliance officer must obtain express consent from the employer before using the drone for an inspection and notice must be provided to employees before the drone is launched. OSHA notes in the memo that it is exploring blanket public Certificate of Waiver or Authorization from the Federal Aviation Administration to operate drones nationwide.

2. LIKELIHOOD OF RANDOM INSPECTIONS

On Oct. 16, 2018, OSHA announced it would implement its Site Specific Targeting 2016 inspection plan. The plan applies to non-construction workplaces with more than 20 employees. Employers who failed to provide 2016 Form 300A data to OSHA will be selected at random and added to an inspection list combined with employers who reported high “days away, restricted or transfer” (DART) rates in 2016. OSHA will include a random sample of employers with low DART rates to the list. The collected data will be used to create inspection lists for OSHA Area Directors and state plan states operating their own plans. Covered employers who have not submitted their forms should make sure they do so by the deadline and prepare for an inspection.

OSHA also has nine National Emphasis Programs focusing inspections on lead, ship-breaking, trenching/excavations, process safety management, hazardous machinery, hexavalent chromium, federal agencies, and primary metal industries, as well as combustible dust in place initiatives.

3. INCREASED FINES

On Jan. 23, 2019, OSHA increased the maximum civil penalties on employers cited for safety violations to adjust for inflation (see table below). The annual penalty increases are required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (ACT) and apply to Federal OSHA states. The Act allowed federal agencies to initially increase penalties in 2016 and then imposed mandatory annual increases to account for inflation.

Violation
2019 Penalty
2018 Penalty
Serious $13,260 per violation $12,934 per violation
Other than serious
Posting Requirements
Failure to Abate $13,260 per day beyond the abatement date $12,934 per day beyond the abatement date
Willful/Repeated $132,598 per violation $129,336 per violation

*On Jan. 25, 2019, OSHA announced that it was repealing the Obama era Electronic Recordkeeping Rule that required employers with 250 or more employees to electronically submit the Form 300 and Form 301. Employers remain obligated to maintain Forms 300 and 301 onsite and OSHA will continue to request those forms as needed during inspections.

Copyright © 2019 Godfrey & Kahn S.C.

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About this Author

Rufino Gaytán, Labor & Employment Attorney, Godfrey Kahn Law Firm "
Associate

Rufino Gaytán is an associate member of the firm's Labor & Employment Practice Group in Milwaukee. Rufino assists private and public employers in addressing general human resource issues and counsels employers in every aspect of labor and employment law. In particular, Rufino provides assistance with discrimination claims, wage and hour issues and drafting and enforcing restrictive covenant agreements. Rufino also represents clients before the Equal Employment Opportunity Commission and the Wisconsin Equal Rights Division.

414-287-9572
Aaron McCann, Godfrey Kahn Law Firm, Labor and Employment Attorney
Associate

Aaron McCann is an associate in the firm’s Green Bay office and a member of the Labor, Employment & Immigration Practice Group. Aaron’s practice is focused on counseling and advocating for employers through all aspects of an employment relationship, beginning with issues in recruitment and hiring at the outset and continuing through severance discussions, termination, and, when necessary, post-employment litigation. Aaron has guided many clients through the wide array of legal issues that frequently arise at the end of employment and has represented clients in federal and state court and in administrative proceedings before the Wisconsin Equal Rights Division and the Equal Employment Opportunity Commission.

Prior to joining Godfrey & Kahn, Aaron was an associate attorney at a Milwaukee area law firm. Aaron also previously served as an in-house law clerk for a major U.S. corporation, a Judicial Intern for Justice N. Patrick Crooks, Wisconsin Supreme Court, and as Deputy Director of then-Wisconsin Governor James E. Doyle’s Washington, D.C. office.

920-436-7671
Rebeca Lopez, Labor & Employment Attorney with Godfrey Kahn
Associate

Rebeca Lόpez is an associate in the Labor, Employment & Immigration Practice Group in the Milwaukee office.

414-287-9634