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OSHA Implements New System for Measuring Enforcement Activity

Beginning this month, OSHA will be using a new system to weigh and measure enforcement activity in order for the Agency to (1) more accurately allocate resources required to perform enforcement related activities, and (2) continue to develop and support a management system to focus enforcement activities on critical and strategic areas. Under the new system, OSHA will be looking at more than just the time taken to complete an inspection when it measures its total enforcement activity, or “Enforcement Units” for the year. OSHA will also be looking to factors such as the type of hazard it is inspecting and whether it is undertaking the inspection activity pursuant to one of OSHA’s enforcement initiatives. Because weight will now be given to these areas, employers should be prepared for inspections related to high hazards and specific OSHA enforcement initiatives. 

Background on OSHA’s Weighting System

Historically, OSHA measured its enforcement activity by looking at the number of inspections that it completed each year. This approach changed in late 2015 when OSHA announced that it would be using an Enforcement Weighting System (EWS) to measure enforcement activity. 

In a September 30, 2015, Memorandum to Regional Administrators, then-Assistant Secretary David Michaels announced that OSHA would be implementing a “new system” to “underscore[] the importance of the resource-intensive enforcement activity that is focused on some of the most hazardous workplace issues such as ergonomics, heat, chemical exposures, workplace violence and process safety management.” Beginning in fiscal year 2016, OSHA would not look to the total “number of inspections as the primary metric to measure enforcement activity.” Instead, OSHA would measure inspection activity by assigning varying Enforcement Units (EUs) to different types of inspections, and measure its aggregate enforcement efforts by tallying those EUs. On the low end of the spectrum, non-formal complaint investigations and rapid response investigations would be assigned one-ninth EUs and on the high end of the spectrum, process safety management inspections would be assigned seven EUs and significant cases would be assigned eight EUs. 

The New Weighting System

In a September 27, 2019, Trade Release, OSHA announced that it would use a new weighting system beginning on October 1, 2019. Under the new system, which is further described in a memorandum to regional administrators, OSHA will continue to weight inspections but will consider factors in addition to time, such as the type of hazard that OSHA is inspecting and whether it is undertaking the activity pursuant to one of OSHA’s enforcement initiatives. 

Going forward, enforcement units are assigned to inspections based on five groupings:

  • Group A includes criminal cases and significant cases and is assigned the highest number of EUs – seven. 

  • Group B includes fatalities, catastrophes, and process safety management inspections and is assigned five EUs. 

  • Group C includes programmed inspections involving OSHA’s “focus four” high-priority hazards (i.e., caught-in, electrical, fall, and struck-by hazards) and is assigned three EUs. 

  • Group D includes programmed inspections under a number of emphasis programs (e.g., amputation, combustible dust, workplace violence, and heat hazards, Site-Specific Targeting, among others), and is assigned two EUs. 

  • All other inspections are encompassed by Group E and assigned 1 EU.

OSHA intends for the changes to the weighting system to “support a management system that focuses enforcement activities on critical and strategic areas where the agency’s efforts can have the most impact.” 

Implications

In light of this announcement, employers should expect OSHA’s inspection activity to reflect a renewed emphasis on high hazard areas and OSHA’s enforcement initiatives. Employers should review their plans for preparing for and managing an OSHA inspection or develop a plan if one is not in place. Additional tips for handling an OSHA inspection are available here.

© 2020 Beveridge & Diamond PC National Law Review, Volume IX, Number 295

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About this Author

Jayni A. Lanham Environmental, Health, & Safety Attorney Beveridge & Diamond Baltimore, MD
Associate

Jayni draws on her experience with environmental, health, and safety (EHS) regimes to help clients assess risk, develop compliance strategies, and build strong legal and technical cases when faced with litigation or enforcement.

Jayni counsels companies in a variety of industries on regulatory compliance and represents them in litigation and enforcement proceedings related to a broad range of federal and state EHS laws. Jayni is a leader of Beveridge & Diamond’s Occupational Safety and Health group and has significant experience advising clients on compliance...

410-230-1333
Heidi P. Knight Environmental, Health & Safety Attorney Beveridge & Diamond Boston, MA
Principal

Heidi counsels companies nationwide on federal and state environmental, health and safety (EHS) compliance, auditing, and due diligence. 

Heidi has significant experience advising clients across a range of industry sectors on federal and state EHS regulations. She applies her diverse expertise in EHS regulations to help companies comply with requirements in a practical manner, mindful of the companies’ objectives and costs.

EHS Audits, Risk and Compliance Program Assessments

Heidi is a leader of the firm’s EHS Audits, Risk and Compliance Program Assessments practice. She advises a diverse range of companies with planning and conducting comprehensive and targeted compliance audits and managing related federal and state disclosures. She also advises companies on the development and implementation of management systems for environmental compliance.

Heidi was the Compliance Assurance Manager for a manufacturing company for several years. She managed their nationwide EHS audit program, including coordinating facilities and third-party auditors, advising on legal compliance questions, and advising on corrective actions necessary to improve operations, prevent a recurrence, and minimize the risk of potential enforcement actions or other liabilities. 

Heidi also counsels clients on the environmental aspects of acquiring industrial facilities, including identifying and evaluating actual and potential environmental liabilities and identifying permit transfer requirements. 

Occupational Safety and Health

Heidi regularly advises companies on compliance with the Occupational Safety and Health Act (OSHA) and its state equivalents, including compliance with a broad range of health and safety regulations and consensus standards. She also advises clients on preparing for and responding to OSHA investigations and resolving OSHA citations.

Enforcement Defense

Heidi defends companies in federal and state environmental enforcement actions. Among her cases, Heidi and her colleagues successfully defended a manufacturing plant in a Clean Air Act enforcement action resulting in the entry of a consent decree and denial of intervention and defended an administrative action challenging that plant’s air permit.

Professional Involvement

Before joining Beveridge & Diamond, Heidi interned with the U.S. Department of Justice’s Environmental Enforcement Section, the U.S. Attorney’s Office for the District of Maryland, and the Maryland Office of the Attorney General at the State Highway Administration. Earlier in her career, Heidi worked for an environmental consulting firm in the San Francisco Bay Area. 

Heidi is a frequent speaker on auditing and EHS issues. She is also an appointed member of the Northborough Cultural Council in Central Massachusetts, which works to promote the arts and help develop cultural and science programs throughout the Northborough community. She resides in a historic home in Central Massachusetts with her husband and two sons.

617-419-2365
Mark N. Duvall Chemicals Regulation Attorney Beveridge & Diamond Washington, DC
Principal

Mark has over two decades of experience working in-house at large chemical companies. 

His focus is product regulation at the federal, state, and international levels across a wide range of programs, and occupational safety and health.

He leads the firm’s Chemicals group. His experience under the Toxic Substances Control Act (TSCA) includes enforcement actions, counseling, rulemaking, advocacy, and legislative actions. Since the enactment of TSCA amendments in 2016, he has been heavily involved in advocacy, compliance activity, and litigation arising from EPA's implementation...

202-789-6090