OSHA issued an enforcement memorandum on April 28th telling compliance officers to check how employers are training non-English speaking workers on safety. 

The memorandum states that OSHA requires employers to teach employees in a language that they understand.  This is really not anything new.  However, this memorandum also states that if the employee’s vocabulary is limited the training must account for that limitation.  This statement will most likely create many more questions than it does answers.  In addition, the document goes on to say that if employees are not literate, telling them to read training material will not satisfy the employer’s training obligation. 

“This directive conforms with Secretary Solis’ clear and urgent goal of reducing injuries and illnesses among Latino and other vulnerable workers,” said Dr. David Michaels, the OSHA assistant secretary. “These workers represent an integral and essential part of the key industries that keep our country running every day.”

Several OSHA standards require employee training, and it is well understood that training should be provided in formats and languages that workers comprehend. Companies that offer training aids and materials typically offer products in multiple languages, particularly in Spanish for the U.S. market, but also in French, German, Portuguese, Arabic, Hindi, Italian, Chinese, Dutch, and more. The memo says compliance officers should check and verify that training was provided in a language and vocabulary that the workers could understand.

Scenario: An employee sustained a work-related ankle injury (sprain) and received medical treatment. The employee immediately returned to work with restrictions. The employee’s doctor has requested that the employee return for periodic office visits so that he can observe the patient’s improvement. The employee’s doctor states that on the days the employee has an appointment, the employee is “unable to work that date.”

Question: Are the days used by the employee to visit the doctor for follow-up to be considered days away from work?

Response: The days the employee did not work because he needed to travel to his doctor’s office for observation of the injury should not be counted as days away from work on the OSHA log. As long as the employee was physically able to perform his restricted duty job, and the doctor’s recommendation not to work on the days in question was made solely to ensure that the employee was free to keep the appointment for observation, you would count the time as restricted work activity.

Following suit with the Director of OSHA David Michael’s desire to increase the monetary portion of OSHA penalties, the agency announced on April 22nd that it will increase the average cost of both serious and willful violations and make it much more difficult for employers to receive reductions in their penalties. 

In the next few months, only employers who have had an inspection in the previous five years (it was three years) and not received a serious or stronger citation will be granted the 10% good history reduction in fines.  On the flip side, if an employer has received any “high gravity” serious or worse citations in the last five years, they will now see a 10% increase in fines.   OSHA offices will now only be able to offer a 30% reduction in fines though an informal conference settlement agreement.  An interesting addition to this rule is if the employer agrees to hire an outside safety consultant, then the area director is authorized to grant an additional 20% reduction in fines.

In the April 22nd press release Dr. Michaels states: “For many employers, investing in job safety happens only when they have adequate incentives to comply with OSHA’s requirements. Higher penalties and more aggressive, targeted enforcement will provide a greater deterrent and further encourage these employers to furnish safe and healthy workplaces for their employees.”

The new Severe Violator Enforcement Program (SVEP) will focus OSHA enforcement resources on “recalcitrant” employers who endanger workers by demonstrating indifference to their responsibilities under the law. This could be any employer receiving a willful, repeat, or
failure-to-abate violation based on certain criteria. This supplemental enforcement tool includes increased OSHA inspections in these worksites, including mandatory OSHA follow-up inspections and inspections of other worksites of the same employer where similar hazards and deficiencies may be present. SVEP will become effective within the next 45 days. For more information, visit http://www.osha.gov/dep/svep-directive.pdf.

“SVEP will help OSHA concentrate its efforts on those repeatedly recalcitrant employers who fail to meet their obligations under the Occupational Safety and Health Act. It will include a more intense examination of an employer’s practices for systemic problems that would trigger additional mandatory inspections,” said Michaels.

The current maximum penalty for a serious violation is $7,000 and the maximum penalty for a willful violation is $70,000. The average penalty for a serious violation will increase from about $1,000 to an average $3,000 to $4,000.  If passed in its current state, the Protecting America’s Workers Act would raise these penalties to $12,000 and $250,000, respectively. For more information on the new penalty policy, visit http://www.osha.gov/dep/penalty-change-memo.pdf.

In the press release, Dr. Michaels goes on to say: “OSHA enforcement and penalties are not just a reaction to workplace tragedies. They serve an important preventive function. OSHA inspections and penalties must be large enough to discourage employers from cutting corners or underfunding safety programs to save a few dollars.”