OSHA Proposes Change In Penalty Authority

By Stephen Barlas, Washington Editor | October 2008 Vol. 63 No. 10

Pushed by a decision by a federal appeals court, the Occupational Safety and Health Administration (OSHA) wants to make changes in its respirator and training standards which will allow it to assess a penalty on a company on a per employee violation basis. A decision by the U.S. Court of Appeals for the Fifth Circuit in 2005 said OSHA went beyond the language of those two standards in fining a Houston construction company for 11 violations of the asbestos standard, based on the fact that the company did not provide 11 employees with respirators or training for removing asbestos. The court affirmed an earlier decision by the agency's own Occupational Safety and Health Review Commission which stated OSHA had to assess an "aggregate" penalty against the Houston company called Ho Ho Ho Express Inc. With its new proposed rule, the agency wants to make it "unmistakably clear" that each instance when an employee, subject to a personal protective equipment (PPE) or training requirement (e.g. in construction rules, for example, such as confined spaces, trenching, etc.), does not receive the required PPE or training, may be considered a separate violation. OSHA proposes separate "per instance" penalties in cases where the resulting heightened aggregate penalty is appropriate to deter flagrant violators and increase the impact of OSHA's limited resources.