OSHA to Retool Enhanced Enforcement Program

Enforcement under the Occupational Safety and Health Act is chronically criticized as inadequate, mismanaged, and underfunded.

While those charges are generally directed at all OSHA enforcement, a report from the DOL Office of Inspector General (OIG) last year got more specific. The report found across-the-board deficiencies in OSHA’s Enhanced Enforcement Program (EEP), one of the agency’s attempts at specialized enforcement.

At a hearing of the House Subcommittee on Workforce Protections in April 2009, subcommittee chair Lynn Woolsey (D-CA) slammed the EEP, saying: "After 6 years of operation, it’s clear that the Enhanced Enforcement Program original design is flawed, and that OSHA under the Bush administration did not implement the program as intended. We need to know why the program is not working and what we can do to fix it."

OSHA Committed to Change

While not agreeing with all the criticisms, OSHA has committed to retooling the program. Should the upgrade occur, employers that might be targeted by EEP are advised to comprehensively check the adequacy of their worker-safety compliance programs. The consequences of failing to do so might be major.

President Obama has asked for a 10 percent increase in OSHA’s budget for fiscal year 2010. That amounts to $50.6 million and would allow the agency to hire more than 200 new, full-time employees, the majority of which will be new inspectors.

David Michaels, recently confirmed as assistant secretary of labor for OSHA, has said that he has a deep commitment to workplace safety and will propel OSHA to be proactive in both regulation and enforcement.

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What EEP Is Supposed to Do

The EEP was introduced by OSHA in 2003 to deal with the problem of "recalcitrant employers"—those that "repeatedly flout their OSH Act obligations, placing their employees at risk." The EEP included five elements:

• 
  Follow-up inspections for high-gravity citation cases;


• Targeted inspections for other establishments of employers that have high-gravity citation cases;


• Increased public awareness of OSHA enforcement;


• Enhanced settlement provisions; and


• Federal court enforcement.

According to OSHA, a high-gravity enforcement case is one that meets one or more of five criteria:

• 
  High-gravity willful violations;


• Multiple high-gravity serious violations;


• High-gravity repeat violations at the originating establishment;


• Failure-to-abate notices; or


• Serious, willful, or repeat violations related to a fatality.

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Enhanced enforcement includes enhanced follow-up inspections, which must assess not only whether the cited violation(s) were abated but also whether the employer is committing similar violations.

Inspections of related worksites of the same employer will also be conducted to determine whether the compliance problems initially cited are indicative of a companywide problem.

Furthermore, under EEP, enhanced inspections are typically followed by more onerous settlements of the violations.

Provisions of such settlements include requiring the employer to hire a qualified safety and health consultant to develop an effective and comprehensive safety and health program and to assist the company in implementing such a program.

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