“Rather than a prosecutor saying, ‘you have nothing to fear if you have done nothing wrong,’ a more accurate portrayal would be ‘if I decide you have done nothing wrong, you have nothing to fear.’” — Sidney Dekker
There are thousands of work-related fatalities in the United States every year. Every few weeks, an intrepid reporter dips their pen into the inkwell of outrage and publishes an article about how small the penalty was that OSHA levied against the dead worker’s employer. As the AFL-CIO observed in its 2023 edition of “Death on the Job”, in FY 2022, “the median penalty for killing a worker was $12,063 for federal OSHA” and “the median penalty for killing a worker was $7,000 for state OSHA plans.”
The outrage works. “That’s just rounding error on their catering bill.” However, is the outrage misplaced? Is it the purpose of citations and penalties to punish workplace fatalities?
What Gets Cited?
OSHA issues citations for a failure to comply with an OSHA regulation or the general duty clause of the OSH Act, which require employers to provide a place of employment free from recognized hazards.
The citations and penalties are for failure to comply, not for the outcome of failing to comply. An employer that is out of compliance is just as out of compliance, whether that non-compliance resulted in a fatality or not.
Wacker Polysilicon in Charleston, Tennessee experienced a work-related fatality on November 13, 2020, when a graphite heat exchanger cracked during maintenance activities, exposing seven workers to released hydrogen chloride. While trying to escape, one worker fell to his death and two others suffered serious injuries. OSHA opened an investigation the same day and eventually issued a citation for violating 29 CFR 1910.132, General Requirements for PPE, and a penalty of $3,200. The maximum penalty for a violation at the time was $13,494.
Less than five months later, on April 8, 2021, the Yenkin-Majestic plant in Columbus, Ohio experienced a reactor explosion. One employee was killed, five employees were hospitalized with serious injuries, and another four employees were medically treated and released. The OSHA citation included 32 serious violations and two willful violations. None of the citations were for killing or injuring a worker. Instead, the citations were mostly for violating some aspect of the Process Safety Management standard, along with one for violating the HazWOpER standard, and one for violating the PPE standard. The penalties were each for the maximum allowable by the law at the time: $13,653 per serious violation and $136,532 per willful violation, for a total of $709,960.
Two incidents less than six months apart, each with one fatality. Wildly different citations and penalties. What was the difference?
Instance-By-Instance and Not Grouping
Regional offices became more willing to cite employers on an instance-by-instance (IBI) basis and to not group related but different violations as a single citation, especially in what OSHA determined to be “high gravity” situations. In the case of a facility with an inadequate permit-required confined space program, an IBI enforcement would cite for each permit-required confined space, rather than issuing a single citation for an inadequate program, which was often how OSHA did it.
In the case of Yenkin-Majestic, OSHA did not group all of the PSM violations under a single citation for failing to comply with 29 CFR 1910.119. As a single citation, the maximum penalty for a serious violation would have been $13,653. If OSHA had characterized the violation as willful, the maximum penalty would have been $136,532. By not grouping the violations, OSHA was able to cite for
- eight separate violations of the process safety information requirements,
- six separate violations of the process hazard analysis requirements,
- five separate violations of the operating procedures requirements,
- a violation of the training requirements,
- seven separate violations of the mechanical integrity requirements,
- three separate violations of the management of change requirements,
- a violation of the incident investigation requirements, and
- a violation of the emergency planning and response requirements.
Convinced that higher penalties would have a deterrent effect, OSHA sent out two Memoranda on January 26, 2023, formally encouraging each regional administrator to pursue two existing options: Application of Instance-By-Instance Penalty Adjustments and Exercising Discretion When Not to Group Violations.
OSHA’s stated purpose for pursuing higher penalties is not to punish employers for their past bad behavior, but to deter employers from future bad behavior.
How’s That Working Out?
Twice a month, OSHA emails a newsletter to subscribers. It typically includes a few enforcement cases that OSHA believes will be particularly instructive. Recently, the newsletter included these three cases:
PolyCarbon Industries, Andover, MA. Explosion on May 4, 2023, killing one worker. One citation under the general duty clause, 8 citations (including 2 repeats violations) under the PSM standard, and 1 citation under the HazComm standard (1910.1200)
Total penalty: $298,254.
Elite Roofing Services, Glen Cove, NY. A worker killed on April 14, 2023, by falling through an opening on a flat roof. Six willful violations for fall hazards—one violation for each exposed worker (not just the worker who died), and one serious violation for not training workers.
Total penalty: $522,527.
Dynamic Tool Company, El Paso, TX. Inspected under OSHA’s National Emphasis Program on amputations in the manufacturing industries. 49 violations, including one citation under the general duty clause, and other violations of 19 different OSHA regulations.
Total penalty: $596,221.
We won’t know the influence of these new policies on overall workplace safety, however, until we start to the data from the Bureau of Labor Statistics. That data trails by almost 2 years. The BLS won’t release the workplace fatality data for 2023 until December 2024.
A Half-Million Dollar Deterrent
Back when Congress limited the maximum penalty for a single violation to $7,000, the fear of OSHA didn’t motivate employers to do much. Likewise, there wasn’t much motivation for employers to contest what they believed to be an unfair citation if all that was at stake was $7,000. That amount didn’t buy much of a lawyer’s time.
Even now, with Congress allowing an adjustment in penalties for inflation (in 2023, the maximum penalty is $15,625), a single penalty is not much motivation, not much deterrent. But OSHA believes that multiple citations from a single inspection, resulting in upwards of a half million in penalties, is much more likely to have the deterrent effect they are seeking.
Whatever Your Reason
OSHA continues to respect good-faith efforts by employers to comply with OSHA regulations. They will still cite violations, but discretion cuts both ways. Good-faith efforts by employers are more likely to result in OSHA group violations and avoiding an IBI approach. On the other hand, when OSHA decides that an employer is a bad actor—someone who willfully and repeatedly violates OSHA regulations—OSHA is ready to pile on and generate significant citations and penalties. OSHA insists that their intent is to use penalties as a deterrent for future bad behavior, but it will feel like a punishment for past bad behavior.
It would be great if every employer strived to create a safe workplace free from hazards for no other reason than because it is the right thing to do. But some need more incentive than that. Whatever your reason, do your best to make sure your workplace complies with OSHA’s regulations.