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Occupational Safety and Health Administration (OSHA) – Regulatory Law and Enforcement Update

With four more years of the Obama administration, expect increased enforcement efforts from OSHA as we have seen in the past four years. As noted last year, even without formal statutory reform, OSHA managed to double the average fines given to employers through an internal administrative penalty bulletin and the Severe Violator Enforcement Program (SVEP). The outlook for 2013 appears to be more of the same.

The scope of enforcement activities of OSHA may expand as well with the creation of the Whistleblower Protection Advisory Committee (WPAC). The WPAC was created to advise the Secretary of Labor on ways to improve the fairness, efficiency, and transparency of OSHA's whistleblower investigations. This may lead to the expansion of various whistleblower inspections.

On the regulatory front, OSHA issued its semiannual regulatory agenda in December. There are a number of significant rules to be considered in 2013 including:

  1. Formal review of OSHA’s chemical permissible exposure limits;
  2. Notice of Proposed Rulemaking to improve tracking of work-related injuries and illnesses (May 2013);
  3. The Injury and Illness Protection Program (I2P2) has been described by Assistant Secretary Michaels as a priority on the agenda. The I2P2 would require all employers to establish a comprehensive health and safety program to address all hazards in the workplace;
  4. Combustible Dust will be subject to a small business review in October.  Until this specific standard is created, employers will still be subject to the National Enforcement Program to address the hazards of combustible dust. Currently, employers are cited for violations of the general duty clause as well as for housekeeping and safe electrical practice standards.

Given the potential expansion of OSHA regulations, as well as the increased inspections and enforcement activity, employers need to be more proactive than ever.  Six and seven figure fines have become commonplace.  Fines of this size simply cannot be ignored.  Employers should review safety policies to confirm compliance with current regulations and then conduct internal audits to determine whether its employees are complying with those policies on the production floor. 



About this Author

Mark Kittaka, Labor and Employment Attorney, Barnes Thornburg, Law Firm

Mark S. Kittaka is a partner and the administrator of the Labor and Employment Law Department of Barnes & Thornburg LLP’s Fort Wayne, Indiana office. Mr. Kittaka’s practice covers all areas of labor and employment law including federal and state litigation concerning discriminatory practices and retaliation claims, including, but not limited to: Title VII race, sex, color, and religious discrimination claims; the Americans with Disabilities Act (ADA) (disability discrimination, reasonable accommodation, interactive process); Age Discrimination in Employment Act (ADEA); the Family and...