Higher OSHA citation penalties, more inspections and an increase in OSHA’s penalty authority are all possible developments on the U.S. workplace health and safety front in 2022, according to a law firm specializing in OSH matters.
With the Biden administration expected to funnel more federal money toward the agency that oversees health and safety in American workplaces in the coming year, observers can expect to see an increased effort to hold employers accountable for failures to protect their workers.
The total number of federal OSHA inspections increased in 2021 over 2020, and it is likely we will see that trend to continue this year, noted Aaron Gelb, a partner with Conn Maciel Carey, a Washington, D.C.-based law firm. He made his observations during a recent webinar that offered a crystal-ball view of OSHA’s upcoming year, as well as a look back on the major happenings at the agency over the past 12 months.
OSHA conducted 24,358 inspections in 2021, up from 21,680 in 2020. These numbers are down significantly from the pre-pandemic norm. Consider, for instance, that in 2019 the number was 33,401. The decline can be chalked up to OSHA’s scaling back of inspections due to the risk posed by COVID-19. Officers are still being “relatively judicious” about when they go out and which workplaces they inspect, Gelb noted.
“However, with most, if not all, compliance officers vaccinated, we are seeing some return to normalcy in that regard, so I do expect that number to increase again in 2022.”
OSHA Citations Declined in 2021
Curiously, despite the rise in inspections, the total number of citations issued by OSHA declined in 2021, down by almost 25 percent from 2020 (from 40,288 to 31,518). A possible explanation for the paradoxical result, Gelb said, can be found in a change in approach to inspections as compared to those that were typically carried out before the danger posed by COVID became a factor.
“We are seeing far more of the ‘get-in-and-get-out’ type of inspection, even in ones involving relatively significant incidents,” said the Chicago-based attorney. “Most compliance officers that I’ve worked with do not want to be in these workplaces. They focus only on what the scope of the inspections should be…. There definitely does not seem to be the same inclination to expand and look into other areas (beyond what they’re there for). They typically take some photographs, do a couple of witness interviews, and they’re gone.”
One thing the pandemic did not prevent was a significant increase in “big-penalty” cases – those of $100,000 or more. This total rose to 195 from 134 in 2020. That is a product of the Biden administration’s overall effort to hit offending employers much harder in the wallet than its White House predecessor did.
“We do think that there’s going to be a lot more significant enforcement action this year and into the coming years of the Biden administration,” said Lindsay DiSalvo, another partner with the law firm. “There are more resources being put toward enforcement now, so it is likely that we will see this number continue to increase this coming year as well as going forward.”
Increased OSHA Penalty Power
OSHA’s penalty stick may grow into a veritable Louisville Slugger in 2022 if Biden’s signature Build Back Better bill can rally in what are now the late innings of its battle to win the day in Congress. As noted by Gelb, the original version of the bill – which he noted is “on life support right now” – contains proposed amendments that would increase OSHA’s civil penalty authority on serious violations and failure to abate cases by a whopping 500 percent, with fines rising from $13,653 to $70,000. Also, penalties for willful violations and repeat violations would increase from $136,530 to $700,000. Not to mention that the Build Back Better bill would boost OSHA’s budget over the next five years from $591.8 million to $707 million – an increase of 20 percent.
Had the bill made it through the legislative process, it had the potential to result in some significant changes, Gelb said, primarily an expected bulge in the ranks of compliance officers.
“We all know how limited staffing is at the agency. The ability to get into and inspect workplaces is directly related to how many compliance officers there are. So (if this budget increase goes through), the agency will have the ability at some point to significantly staff up in that area and we’ll see more inspections.”
OSHA’s 2022 To-Dos
Other issues to keep an eye on in the year ahead, according to the law firm, include:
- Focus on heat illness: OSHA is currently putting a big focus on heat illness, from an enforcement standpoint, and has issued a new enforcement directive which requires compliance officers, whenever they are in a workplace and for whatever reason, to evaluate whether there are heat illness risks. If they see strenuous work in high heat conditions, they will have to evaluate compliance under OSHA’s General Duty Clause with recognized practices to address that heat illness threat.
- Increasing criminal prosecutions: In a push originally spearheaded by the Obama White House, OSHA will up its efforts to find and prosecute more cases involving worker safety that are of the criminal variety. “Even without an amendment to the OSH Act, the Department of Justice has gotten creative in finding ways to pair worker safety crimes with environmental crimes,” noted Eric Conn, the firm’s chair. This commitment, he added, is coming about even though such charges are still misdemeanors that can only be brought against companies and, in rare circumstances at the federal level, against individuals. “But they’re doing more, in as much as they can.”
- More support for whistleblowers: Expect the administration to redouble the efforts that began during the Obama era to highlight whistleblower retaliation actions under the OSH Act. Obama created a new division to handle that and we can expect to see funding for it during the Biden administration. “It is a clear objective and we expect to see a lot more activity on that front,” said Conn.
- Process safety industry focus: A National Emphasis Program launched at the very end of the Obama administration targeting increased safety in industries such as refining and chemical manufacturing “sort of sat on ice” during Donald Trump’s stay in the White House, said Conn. “They were doing inspections, but not at the rate they were expected to, and they seemed to not be as robust. We anticipate that that will pick back up, at least as we begin to get the pandemic more and more under control, and to see a refocus on very robust enforcement in the process safety industries.”
- Protecting America’s Workers Act progress: Or, perhaps more accurately, lack thereof. With Democratic control of both the executive and congressional levels of government in early 2021, the table seemed set for advancement of this legislation, which would reform the OSH Act to increase penalties, increase the number of potential targets for criminal charges and generally “sharpen OSHA’s teeth,” as Conn put it. However, COVID and other competing legislative priorities, such as Biden’s Build Back Better effort, mean that the Protecting America’s Workers Act may not be a priority in 2022. If the Democrats get favorable results from the upcoming mid-term elections and retain control in Congress, though, this could still be something to watch out for later in the year, Conn added.