New enforcement guidelines from the Occupational Safety and Health Administration indicate the federal agency’s “increased aggressiveness” against long-term care and other work sites where employee safety, health or well-being could be jeopardized, according to one attorney. Fortunately, he says, employers can take steps now to minimize their risks.
The new guidance becomes effective 60 days from the date of issuance, Jan. 26.
OSHA regional administrators and area office directors now have the authority to cite certain types of violations as “instance-by-instance citations” in cases where the agency identifies “high-gravity” violations of OSHA standards related to respiratory protection (for instance, during infectious outbreaks), falls, lockout/tagout, machine guarding, permit-required confined space, trenching and for cases with other-than-serious violations specific to recordkeeping. In a second action, OSHA reminded regional administrators and area directors of their authority not to group violations, and instead cite them separately to more effectively encourage employers to comply with the intent of the OSH Act.
“Smart, impactful enforcement means using all the tools available to us when an employer ‘doesn’t get it’ and will respond to only additional deterrence in the form of increased citations and penalties,” Assistant Secretary for Occupational Safety and Health Doug Parker said in a press release announcing the new guidance. “This is intended to be a targeted strategy for those employers who repeatedly choose to put profits before their employees’ safety, health and well-being. Employers who callously view injured or sickened workers simply as a cost of doing business will face more serious consequences.”
A decision to use instance-by-instance citations, according to OSHA, typically should consider one or more of these factors:
- The employer has received a willful, repeat or failure to abate violation within the past five years.
- The employer has failed to report a fatality, inpatient hospitalization, amputation or loss of an eye pursuant.
- The proposed citations are related to a fatality/catastrophe.
- The proposed recordkeeping citations are related to injury or illness(es) that occurred as a result of a serious hazard.
“OSHA’s new enforcement guidance makes it clear that OSHA is increasing its focus on high-risk industries and employers who repeatedly violate safety regulations,” attorney Phillip C. Bauknight, a partner at Fisher Phillips, told the McKnight’s Business Daily. “Although OSHA has made it clear that it has the authority to utilize increased aggressiveness — and we expect they will do so — there are various steps employers can take to improve your workplace safety practices in 2023 and going forward.”
Senior living community and nursing home operators, as well as other employers, Bauknight said, can take these steps right away:
- Assess your company’s vulnerability. An ounce of cure is worth a pound of prevention.
- Review your company’s OSHA-related record-keeping. One of the most-cited safety issues is poor record-keeping. Ensuring that this process is in order can save employers many headaches.
- Keep proper documentation of all training, violations and safety-related disciplinary action. When trying to defend yourself against a citation, a good rule of thumb is that if it’s not documented, then it didn’t happen.
The announcement of the new guidance follows the changes OSHA made Jan. 17 to civil penalty amounts based on cost-of-living adjustments for 2023. The agency’s maximum penalties for “serious and other-than-serious violations” increased from $14,502 to $15,625 per violation. The maximum penalty for “willful or repeated violations” increased from $145,027 to $156,259 per violation.