In these troubled economic times, the Occupational Safety and Health Administration (OSHA) has hit upon a sure-fire way to increase government revenue without any extra work or change in procedures. If it wasn’t so ominous for employers, we might be tempted to applaud the agency’s ingenuity and audacity.
Required federal and state workplace posters, including OSHA
Personal protective equipment
OSHA regulations require employers to provide personal protective equipment (PPE) to each employee, depending on his job duties and position. PPE includes a wide range of items, from respirators to flame-resistant clothing. Training requirements under OSHA regulations are also broad, but generally apply to employees exposed to toxic substances such as asbestos, vinyl chloride, and lead.
On January 12, 2009, OSHA published a final rule that, as a practical matter, significantly increases the monetary penalties for certain PPE and hazards training violations. The final rule, titled “Clarification of Employers’ Duty to Provide Personal Protective Equipment and Train Each Employee,” provides a simple “clarification”: Each violation of the PPE or training requirement results in a per-employee penalty.
In the past, the failure to provide required training to a large team of employees was frequently treated as a single violation. Thus, if the penalty for failing to provide certain personal protective equipment was $1,000, the employer might have been assessed a $1,000 penalty, even if it failed to provide 200 employees with the required PPE. Now, the final rule amends OSHA’s regulations to clarify that a grouping of violations isn’t allowed. Instead, each employee who isn’t given the required PPE or training will count as a separate violation for which a separate penalty will be assessed. In essence, the fines increase exponentially under the “clarified” rule. Using the previous example, we can calculate the penalty under the final rule as $200,000 — not $1,000.
Thomas M. Stohler, acting assistant secretary of labor for OSHA, explained the new rule as a “technical correction to the PPE standard [that] brings it in line with other OSHA safety and health standards. By making this change, those few employers who egregiously violate the OSHA personal protective equipment standard can be held fully accountable for violations affecting each employee who is not provided proper PPE. This kind of vigorous enforcement is a vital component of OSHA’s balanced approach toward workplace safety and health.”
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The good news for employers is that the final rule doesn’t add new compliance obligations. The preamble to the rule states, “Employers are not required to provide any new type of PPE or training, to provide PPE or training to any employee not already covered by the existing requirements, or to provide PPE or training in a different manner than is already required. The amendments simply clarify that the standards apply to each employee.”
Now is the time to review your compliance with OSHA’s rules on PPE and hazardous materials training. While you’re doing that, perhaps you can come up with a similar scheme that will allow you to grow your revenue by leaps and bounds just by “clarifying” the way you run your business.
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