OP-ED: Oregon OSHA Rulemaking Substantially Increases Penalties and More
Daily Journal of Commerce Oregon
In July 2020, Oregon OSHA re-proposed two new permanent rules that have been overshadowed by the recent infectious disease temporary rules. These proposed permanent rules, however, should not be overlooked because they may impact your business.
The first rule, the “re-proposed” Increase of Certain Minimum and Maximum Penalties for Alleged Violations, proposes to increase the minimum and maximum amounts for OSHA violations. This rule was proposed to align with similar standards that the federal OSHA had implemented in November 2015, requiring increases of minimum and maximum penalties for violations up to 78 percent. Federal OSHA, however, had not made adjustments since 1990. In reaction to these new federal regulations, Oregon OSHA made initial adjustments to its penalties in 2017; they became effective in 2018.
As drafted, the rule (which incorporates changes to OAR 437-001-0145 ) will increase minimums for serious violations depending on the probability of risk of physical harm or death. Most concerning is that the new rule gives the OSHA administrator the authority “at his or her discretion, to assess a penalty of between $100 and $13,538 for any serious violation, between $200 and $135,382 for any repeated violation, and between $9,472 and $135,382 for any willful violation after considering the facts.” Depending on the type of violation and whether Oregon OSHA determines it to be willful could result in over a 10,000 percent increase from the current discretionary penalty. There are several other changes, clarifications and “technical adjustments,” which can be viewed on Oregon OSHA’s website.
The second rule, the “re-proposed” Amendments in General Administrative Rules to Clarify Employer’s Responsibilities, proposes to add two definitions to OAR Chapter 437, the rules for the Oregon Safe Employment Act, and further change the law to provide “how Oregon OSHA assesses an employer’s knowledge of a violation, and when an employer is and is not responsible for a violation …”
The proposed rule, modifying OAR 437-001-0015 , would include a new definition for “reasonable diligence,” which is broadly defined as “a standard of care where the employer identifies and anticipates hazards and violations that could occur in the workplace and then takes measures through the use of devices, safeguards, rules, procedures, or other methods that eliminate or safely control such hazards or prevent such violations.” Opponents criticize the definition as an impossible standard. Employers could never show compliance regardless of how diligently they act. Many even argue that the standard will make employers strictly liable and shift the burden of proof from the agency to the employer for any violation.
The rule further defines “unpreventable employee misconduct” as:
“where an employee intentionally violates or does not use the devices, safeguards, rules, procedures or other methods provided, developed and implemented by the employer to safely accomplish the work; and does so in a manner that the employer could not have prevented. To establish unpreventable employee misconduct, the employer must demonstrate all of the following elements:
“(a) The employer had devices, safeguards, rules, procedures, or other methods in place to eliminate or safely control the hazard or prevent the violation.
“(b) The employer had effectively communicated to employees the methods established under (a).
“(c) The employer had provided employees with the necessary training, equipment and materials to use and comply with the methods established under (a).
“(d) The employer had developed and implemented measures that identified any violation of the methods established under (a).
“(e) The employer had taken effective correction action when a violation was identified under (d).”
Unpreventable employee misconduct is one of the few claims employers can use to defend against an alleged safety violation. Critics argue that the additions, however, essentially render the defense unusable. Essentially, the employer must show that it identified all instances of employee misconduct (violations) and took “effective” corrective action when the violation was known. In most instances, however, the employer has safeguards and training in place and is unaware of employee violations – if the employer were aware of the violation, it would have presumably corrected it and, thus, there would be no violation.
There are additional changes related to this rule that should be viewed on Oregon OSHA’s website. The public comment period to both rule changes closed on Oct. 30, 2020. The permanent rules have not yet been adopted, but should become effective in the near future. Be sure to consult counsel to determine how these rule changes specifically affect your business.
Column first appeared in the Oregon Daily Journal of Commerce on November 13, 2020.