Employers Should Prepare For Stricter Enforcement of Regulations
The U.S. Department of Labor issued a Memorandum for all OSHA Regional Administrators to provide clarity regarding the 2021 Annual Adjustments to OSHA Civil Penalties.
On November 2, 2015, the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 was enacted which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990, as previously amended by the 1996 Debt Collection Improvement Act (collectively, the “Prior Inflation Adjustment Act”) for civil monetary penalties.
The cost-of-living adjustment multiplier for 2021, based on the Consumer Price Index for All Urban Consumers for October 2020 (not seasonally adjusted), is 1.01182. To compute the 2021 annual adjustment, the Department multiplied the most recent penalty amount for each applicable penalty by the multiplier, 1.100182 and rounded it to the nearest dollar.
1. Minimum and Maximum Penalty Amount
Table 1 summarizes the minimum and maximum amount for proposed civil penalties:
|Table 1: Maximum and Minimum Amounts for Civil Penalties|
|Type of Violation||Penalty Minimum||Penalty Maximum|
|Serious||[$975] per violation||$13,653 per violation|
|Other-Than-Serious||$0 per violation||$13,653 per violation|
|Willful or Repeated||[$9,753*] per violation||$136,532 per violation|
|Posting Requirements||$0 per violation||$13,653 per violation|
|Failure to Abate||N/A||$13,653 per day unabated beyond the abatement date [generally limited to 30 days maximum]|
[* For a repeated other-than-serious violation that otherwise would have no initial penalty, a GBP penalty of $390 shall be proposed for the first repeated violation, $975 for the second repeated violation, and $1,950 for a third repetition.]
2. Gravity Based Penalty Amounts
The gravity of a violation is defined by the Gravity Based Penalty (GBP).
- A high gravity violation is one with a GBP of $13,653.
- A moderate gravity violation is one with the GBP ranging from $7,802 to $11,703.
- A low gravity violation is one with a GBP of $5,851.
For serious violations, the GBP shall be assigned on the basis of the following scale in Table 2:
Severity + Probability = GBP
|Table 2: Serious Violations|
For other-than-serious violations, only minimal severity is assigned.
|Table 3: Other-Than-Serious Violations|
|Minimal||Greater||$1,000 – $13,653|
3. Serious Willful Penalty Reductions.
The reduction factor for history shall be applied as usual. The reduction factors for the size of serious willful violations shall be applied as shown in Tables 4:
|Table 4: Serious Willful Penalty Reductions|
|10 or fewer||80|
|251 or more||0|
Inflationary adjustments also impact violations related to ERISA, FMLA, the Fair Labor Standards Act, and the Immigration and Nationality Act, among others.
On January 29, 2021, the Occupational Safety and Health Administration issued guidance titled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace as a direct result of the mandate by President Biden as part of his Executive Order issued on Jan. 21, 2021.
All employers should be prepared for increased enforcement by OSHA under the new Biden Administration, especially stricter standards and regulations on requirements to combat COVID-19. It is recommended that employers review and conduct internal audits of their safety programs and policies, maintain safety training, and identify potential safety hazards in the workplace.