While the Occupational Safety and Health Administration (OSHA) has six economically significant rulemakings in the pre-rule or proposed-rule stages, the agency appeared to shy away from major rulemaking after the U.S. Supreme Court issued a stay in 2022 of the agency’s COVID-19 “vaccinate-or-test” emergency temporary standard (ETS). This year, OSHA’s regulatory activity has been overshadowed by its enforcement activity.
Are you a target of OSHA’s enforcement?
In 2023, OSHA levied million-dollar proposed penalties, reached million-dollar settlements with employers, and even won a million-dollar ruling in a citation challenge. A new enforcement directive boosts OSHA penalty amounts with instance-by-instance citations. OSHA’s enforcement also involves new and ongoing collaborations with other federal agencies. The agency also has launched new national and regional emphasis programs (NEP/REP) and renewed others.
Million-dollar penalties
In June, OSHA announced that an Illinois pizza manufacturer faces $2,812,658 in penalties and has been placed in the agency’s severe violator enforcement program (SVEP) after a 29-year-old sanitation worker died while cleaning a conveyor. Inspectors determined that a temporary worker, who hadn’t been trained or authorized to stop equipment from moving before cleaning, was using compressed air to clean a spiral conveyer as it moved to cool pizza in the company’s sheeting facility when her head became caught in the machinery.
The Elk Grove Village, Illinois, pizza manufacturer was cited for 16 willful serious violations, one willful violation, and 12 serious violations, including five serious instance-by-instance violations.
At the beginning of the year, OSHA issued new enforcement guidance, allowing “instance-by-instance” citations for “high-gravity” serious violations of several agency standards. Regional administrators and area office directors now have the authority to issue instance-by-instance citations for violations of the fall protection, lockout/tagout, machine guarding, permit-required confined space, respiratory protection, and trenching standards.
At the time, Doug Parker, assistant secretary of labor for occupational safety and health, said, “This is intended to be a targeted strategy for those employers who repeatedly choose to put profits before their employees’ safety, health and wellbeing.”
This month, the agency cited a Minnesota contractor for a serious violation and 16 repeat violations involving trenching and excavation hazards, proposing $1.8 million in OSHA penalties. The International Falls, Minnesota, contractor that signed a settlement agreement with the agency in 2021 was found to be again endangering employees working on a project to replace a residential water main and curb stop valves for house connections in Minot, North Dakota, according to the agency.
Responding to a complaint, agency inspectors discovered unprotected trenches this past summer.
Discount retailers targeted
OSHA has been vigilant in its inspection and enforcement in the retail trade, especially at Dollar General, Dollar Tree, and Family Dollar stores. The agency has repeatedly cited the discount retailers for blocked exit routes and electrical panels, as well as precariously stacked boxes.
In April, discount retailer Dollar General found itself facing over $1 million in new OSHA fines for violations at four stores in Florida and Georgia. In May, Dollar General Corp. and its parent, Dolgencorp LLC, found themselves facing another $3.4 million in OSHA fines following inspections at nine Dollar General locations in Maine, North Dakota, Ohio, and Wisconsin. The agency announced it already proposed fines of more than $21 million since 2017 arising from 240 inspections conducted at Dollar General stores nationwide and had added Dollar General and Dolgencorp to its SVEP.
In August, OSHA announced it reached a settlement agreement with Dollar Tree Stores, Inc., the operator of Dollar Tree and Family Dollar stores. Dollar Tree Stores, Inc., agreed to pay $1.35 million in penalties to settle existing contested citations and open inspections. Under the settlement agreement, Dollar Tree and Family Dollar will conduct a comprehensive, nationwide assessment of the root causes of the violations OSHA has cited at multiple locations, with a plan to identify causes and make operational changes to correct them within a two-year period.
Under the agreement, Dollar Tree and Family Dollar stores also will ensure prompt abatement of any further violations related to blocked exits, access to fire extinguishers and electrical panels, and improperly stored materials at stores nationwide, correcting hazards within 48 hours of OSHA notifying the company. The company then must submit proof that the hazards were corrected.
If the employer fails to do so, Dollar Tree and Family Dollar are subject to monetary assessments of $100,000 per day of violation up to $500,000.
Million-dollar agreement, ruling
On December 14, OSHA announced that Cambria, Wisconsin, corn milling company Didion Milling Inc. agreed to pay $1.8 million in agency penalties related to a May 31, 2017, dust explosion that killed five workers and injured more than a dozen others.
In related criminal cases, the company pleaded guilty to charges related to falsifying records and agreed to pay restitution of more than $10 million to the explosion’s victims and a $1 million criminal fine.
Company officials, including shift supervisors and a former environmental manager, also pleaded guilty in September in federal court in Madison to charges related to the incident. The company vice president of operations and a former food safety superintendent were convicted by a federal jury for falsifying documents and obstructing OSHA’s investigation. The convicted employees and those who pleaded guilty are awaiting criminal sentencing.
While some citations are resolved with settlement agreements before the Occupational Safety and Health Review Commission between OSHA and the employer, other employers lose their challenges before the full commission or an administrative law judge (ALJ). In June, a review commission ALJ ruled that a Maine roofer is personally responsible for $1,572,340 in OSHA fines. OSHA cited the roofer and his company for 14 willful, two repeat, and four serious workplace safety violations after a series of inspections found workers exposed to fall hazards.
In October, OSHA announced that the agency’s construction industry fall protection standard (29 Code of Federal Regulations (CFR) §1926.501) was its most frequently cited standard for the 13th straight year, cited 7,271 times in fiscal year (FY) 2023, which ended September 30.
Joint investigations
OSHA also is cooperating with investigators in other federal agencies on enforcement. In September, OSHA announced that it and the Department of Labor’s (DOL) Wage and Hour Division (WHD) are investigating workplace safety and child labor violations at a Hattiesburg, Mississippi, poultry plant following the death of a 16-year-old worker.
OSHA obtained a warrant from the U.S. District Court for the Southern District of Mississippi to secure access to the plant and investigate safety hazards related to the incident. The warrant allows federal officials to question any agent, employee, employer, or operator privately and review records related to the operation and maintenance of the equipment involved in the incident.
The agency also accepts referrals from WHD personnel under OSHA’s heat stress NEP, launched last year.
In November, the agency announced an agreement with the National Labor Relations Board (NLRB) outlining procedures for information-sharing, referrals, training, and outreach to bolster federal whistleblower protection enforcement.
Emphasis programs
This year, OSHA launched NEPs for falls and warehouse operations and renewed an NEP for combustible dust hazards.
The fall protection NEP, announced May 1, targets fall hazards across all industries.
Nonconstruction work targeted by the NEP includes the following:
- Arborist/tree trimming
- Chimney cleaning
- Communication towers
- Gutter cleaning
- Holiday light installation
- Power-washing buildings
- Road sign and billboard maintenance
- Rooftop mechanical work or maintenance
- Utility line work or maintenance (electrical, cable)
- Window cleaning
The NEP is based on historical data from OSHA’s own enforcement and the Bureau of Labor Statistics’ (BLS) fatal occupational injury and illness data. BLS data shows that of the 5,190 fatal workplace injuries in 2021, 680 were associated with falls from elevations—about 13% of all deaths.
Each OSHA area office develops an inspection master list generated following the agency’s list-generation and randomization procedures. The NEP procedures also allow OSHA compliance safety and health officers (CSHO) to open inspections whenever they observe someone working at heights during their normal workday travel or during other OSHA inspections.
OSHA has a similar “self-referral” policy for its heat stress NEP.
The new warehouse operations NEP is focused on warehouses, postal processing facilities, distribution centers, and high-risk retail establishments. Hazards in warehouses and distribution centers targeted by the NEP include struck-by hazards; caught-in and caught-between hazards; slip, trip, and fall hazards; blocked aisles; means of egress; powered industrial trucks and other material-handling equipment; heat hazards; and ergonomic hazards.
OSHA inspectors are conducting comprehensive safety inspections focused on hazards related to powered industrial vehicle operations, material handling and storage, walking and working surfaces, means of egress, and fire protection. The program also includes inspections of retail establishments with high injury rates focused on storage and loading areas.
The warehouse operations NEP expands on a Region 3 REP focused on warehouse operations in Delaware, the District of Columbia, Pennsylvania, and West Virginia targeting ergonomic and heat hazards.
The revised combustible dust NEP targets workplaces that generate or handle combustible dusts to determine whether employers have addressed fire, flash fire, deflagration, and explosion hazards associated with combustible dusts.
Industries targeted under the NEP include:
- Commercial bakeries
- Printing ink manufacturing
- Cut stock, resawing lumber, and planing
- Leather and hide tanning and finishing
- Truss manufacturing
- Grain and field bean merchant wholesalers
However, many more food manufacturing, milling, and wood product industries are targeted under the NEP.
OSHA’s Region 3 office renewed an REP for occupational noise exposure in Delaware; Pennsylvania; Washington, D.C.; and West Virginia. Targeted industries include:
- Sawmills and wood preservation
- Wood container and pallet and other wood manufacturing
- Plastics and product manufacturing
- Nonmetallic mineral product manufacturing
- Plate work and fabricated structural product manufacturing
- Ornamental and architectural metal products
- Coating, engraving, heat treating, and allied activities
- Fabricated metal product manufacturing
- Ship- and boat-building
The REP is focused on occupational hearing loss risks in industries identified in OSHA and BLS data.
Remain mindful of your enforcement exposure. OSHA’s area offices will continue to respond to workplace safety and health complaints in 2024, act on referrals from the DOL’s WHD, and schedule programmed inspections under the agency’s NEPs and local emphasis programs in your region.