What To Expect From OSHA Under The Biden Administration

This blog post consists of a video recording, and transcript, of a webinar given by Russell Carr of Berg Compliance Solutions describing his thoughts on what employers should expect from OSHA under the new Biden Administration

Over the next 30 to 45 minutes I’m going to make the argument that employers should expect a return to increased OSHA enforcement efforts and expansion of occupational health and safety regulations under Biden in the coming four years, especially as compared to the last four years under Trump.

And having said that, keep in mind this webinar is not intended to be a political statement, or evaluation in any way, shape, or form. My intent is to simply present the facts as I know them. All right. So let me begin with a little bit of background information. As we all know, Biden served as vice president during the eight year Obama administration. So in my opinion, trying to predict what OSHA might look like over the next four years isn’t really that difficult. In other words, there’s very little reason to believe that Biden’s policies won’t mimic “Obama’s OSHA blueprint,” which strongly supported democratic values, including workers’ rights and health and safety protections. So in order to make this overall case, the webinar will focus on reviewing Obama era OSHA policies, and how these will likely predict the future, and when appropriate, I’ll make comparisons to Trump era policies.

And with that said, let’s get started here. So here’s the agenda. Here’s what we’re going to cover today. We’re going to, again, we’re going to review Obama era enforcement policies, including the big OSHA fine increases that he implemented, his head of OSHA appointee, Dr. David Michaels, and Michaels’ regulation by shaming policy that we’ll talk about. Then we’ll talk about the Severe Violator Enforcement Program. We’ll talk about significant enforcement cases and what that means, and the increases that happened during Obama’s administration. We’ll talk about increased employee complaints, inspections, and then we’ll talk about expanded OSHA health and safety standards that occurred. Then we’ll end off this section by talking about employer criminal liability that a lot of people, a lot of business owners aren’t aware of. Then we’ll transition into talking about early Biden administration actions and indicators. And then we’ll end off by talking about how employers should prepare for all this.

All right. So let’s begin by talking about the major OSHA fine increases that occurred in August, of 2016. So prior to 2016 OSHA hadn’t increased fines since the mid nineties, and as a result decided to institute these increases in order to account for inflation since that time. So the bottom line, the maximum fine for serious violations, which are the most common type, increased from a maximum of $7,000 each to a current maximum of 13,653. And the maximum for willful, or repeat violations increased from a maximum of 70,000 to a current maximum of a 136,532. So basically willfuls and repeats are 10 times the amount of a serious violation. And keep in mind that these fines will continue to increase every year moving forward to account for inflation.

All right, so let’s talk about Obama’s head of OSHA appointee. So Obama appointed Dr. David Michaels to run OSHA during his administration, and Michaels was a strong advocate for workplace health and safety protections. And also a really strong believer in the power of enforcement as both a deterrent and an incentive for employers to keep up with their safety obligations as you’re going to find out on the next slide. And by the way, in January Biden already appointed Michaels to be part of his transitioning COVID advisory board. So to be clear, Michaels isn’t currently part of OSHA, but he is already part of the Biden administration. All right. So Michaels demonstrated his strong belief in enforcement through his regulation by shaming policy, which he instituted. And so bear with me as I read through this slide, because it’s important to understand how this works. So according to Michaels, this is a quote from him directly. “The most effective means for OSHA to encourage elimination of life threatening hazards, is to publicize the names of violators, especially when their actions place the safety and health of workers in danger.”

And he dubbed this enforcement initiative regulation by shaming. So this was a very intentional policy that was consistently used throughout that time. And let me explain how that worked and what that looked like. So here’s an actual example of what one of these shaming press releases looks like. I’m going to read this in a minute. And as you’ll see, it always includes the total fine amount, a statement about the citations, or accompany injury record. And then it always includes a critical statement from the local OSHA director who conducted and oversaw the inspection about the company’s failure to manage safety, which is obviously not at all flattering for the company nor management.

So this is, again, this is an actual example. So the US department of labor’s, excuse me, US department of labor’s OSHA fines Lobo Tortilla Factory of Dallas, Texas, a $123,200 in penalties for a combination of a serious and willful health and safety violation. So this is a quote from the OSHA area director in Dallas. He said, “In the last three years, at least seven workers have sustained injuries while performing maintenance work at this facility,” said, Stephen Boyd, OSHA’s area director in Dallas. “This company clearly knew its responsibilities under the Occupational Safety and Health Act but continued to jeopardize the safety of its workers.” So again, you can just imagine this being posted about your company. It can be really damaging and embarrassing for the company, and it happened throughout the Obama administration. Let me explain more about what this means and often what ends up happening as a result of the policy and these press releases.

So once OSHA publicizes one of these press releases, other media outlets are always on the lookout for these things. So they immediately pick up on it and republish the press release all over the place, online, in local newspapers, in trade journals, and even by email that people in specific industries, for everyone to read, including the local community, company competitors, and worst of all, customers to read. And I included this screenshot to demonstrate what this can actually end up looking like online. So here’s an example of what came up when I entered the name of a company in Temple, Texas, who was fined by OSHA several years ago. So it literally populates entire page on Google talking about this OSHA fine, and this failed inspection. And this literally can live out there online for years, and there’s nothing that the company can do about it. So again, this can turn into a major embarrassment and PR nightmare for any company that gets impacted by this, or that got impacted by this.

Here’s another major Obama era OSHA policy, which is called a Severe Violator Enforcement Program, which he started in June, of 2010. So basically what this is, is an enhanced enforcement program targeted at “bad actor employers” who show an indifference towards health and safety issues. So it typically includes companies that get either repeat and, or, willful violations. And although there are large companies involved in the program, it primarily impacts small companies who are least prepared to deal with it as you’re going to see in the next slide here. Here are some details and consequences about the program that are worth noting. So again, OSHA issues these public shaming press releases, which tags the company as a “severe violator” who doesn’t care about workplace safety, which we just got done talking about can cause major reputation damage for the business.

The program also includes enhanced follow-up inspections, which the company has to pass, which is very tough, because these inspections are comprehensive inspections that include all aspects of compliance. So it includes conducting facility inspections, reviewing written programs for accuracy, training records, and everything else that the company has to do under OSHA law. It’s very comprehensive, very hard to keep up with, very tough to follow these inspections. And the program normally includes what are called enhanced and settlement agreements, which often include a requirement to hire a full-time qualified safety manager, for a small company that can be a big hit to the budget. And due to the complexity and enhanced enforcement surrounding this program, it can literally take a company years to meet all the requirements and exit the program. This isn’t a one month, two month, three month thing. This can literally go on for years until the company meets the standards and can exit the program.

All right. So let’s talk about another major enforcement trend that arose during the Obama administration, which are called significant enforcement cases. So a significant enforcement case are OSHA inspections that result in fines that exceed a hundred thousand dollars. So these enforcement cases typically impact small companies more often than large companies. You would think it would be the other way around, but it’s a good example about OSHA really doesn’t care about the size of a company when it comes to issuing major fines and penalties. And I’ve seen that throughout my career here in Texas. Small companies get hit hard just as hard as big companies do. And here’s an example of an actual significant enforcement case. So Durcon was a Texas manufacturer, was fined $459,918 after an employee complaint, which resulted in 25 violations. So this included a combination of serious, repeat and willful violations, including failure to manage a hearing conservation program, multiple lockout/tagout violations, a failure to implement a Confined Space Program, failure to provide forklift training, various electrical violations, multiple Respiratory Protection Program violations, and multiple machine guarding violations.

So really what OSHA is trying to do in these significant enforcement cases is to identify and justify what are called, and what I’ve referred to before, are willful violation. So willful violations are when OSHA can demonstrate that an employer was aware of a serious health, or safety hazard, but failed to do anything about it, failed to take action. And as we stated earlier, these carry a maximum of $136,000 each as far as fines go. So it doesn’t take long to exceed a hundred thousand dollars in these cases. And I’ll end off this section by pointing out that these significant enforcement cases increased dramatically during the Obama administration, as you can see in this graph. So keep in mind that it only shows data through 2011, and that’s because OSHA stopped issuing public data on this topic. But the point is that they almost doubled from 2008 at a 121 at the start of the Obama administration until 2011, and then continued to comply, excuse me, climb afterwards.

And I know this because I regularly monitored enforcement cases since that time. And we were regularly seeing fines in excess of a hundred thousand dollars. In addition to the antics attacks that we saw with significant enforcement cases, we also saw big increases in the percentage of inspections that were triggered by employee complaints. So as you can see in the graph, they steadily increased from 17% in 2009, every year until 2016 when the national average increased to 25% for all inspections naturally triggered by an employee complaint, which is the last public data I can find on this. So keep in mind that these inspections can be triggered either by a current employee, or a past employee who was fired, or laid off, who doesn’t even work for your company anymore. So in my experience, many of these complaints are actually valid, but oftentimes they’re submitted by disgruntled employees who have some ax to grind with the company.

So regardless, this is another reminder of the importance of keeping up with your safety program so that your employees know that you take safety seriously, and won’t turn your company into OSHA, because if they do, OSHA is mandated to respond, and they’re likely to show up if they feel like it’s a valid complaint. Another thing I want to talk about here is worker fatalities and employer criminal liability. So many business owners don’t realize that there’s actual potential criminal liability associated with workplace fatalities. So this is a long slide, but let me go ahead and read through it word for word, because it’s important stuff here. So if an employer is convicted of a willful violation of an OSHA standard that has resulted in the death of an employee, the offense is punishable by a court imposed fine, or by imprisonment for up to six months, or both. And so a fine of up to $250,000 can be levied to an individual, or a half a million dollars for a corporation maybe imposed for a criminal conviction.

So to be perfectly clear, we didn’t see a dramatic increase in these criminal prosecutions during the Obama administration, but it’ll be interesting to see if that happens under Biden, we’ll just have to wait and see, but I did want to point out this potential criminal liability that a lot of companies aren’t aware of. All right. So now let’s talk about expanded health and safety standards that occurred under Obama. So number one, the Hazard Communication Standard, which is OSHA’s hazardous chemical safety standard, underwent a major update in 2012 to meet the, what’s called the Globally Harmonized System, which is a global chemical labeling and classification system basically. So I won’t go into great detail on this, but that update included a complete update to what used to be called materials safety data sheets, and are now called safety data sheets. The format was totally changed to include much more detailed information, which also included the introduction of what are called pictograms, or infographics, to reflect all the different hazards.

So if any of you remember this, this was a huge update that employers had to deal with. Then at the very end of the Obama administration, OSHA pushed through their new electronic injury and illness reporting requirements, which now requires employers in high hazard industries to electronically submit their OSHA 300 summary logs electronically. So what this does is this requirement now makes it much easier for OSHA to identify and target companies that have high injury and illness rates, which made it a very controversial issue, but it did get pushed through. Then in 2017 OSHA significantly updated their walking and working surfaces standard, which included several new fixed ladder requirements, a rope descent systems, a new employee fall protection training requirements, and a lot more. Then in 2018, there was a major update to silica exposure requirements, where the permissible exposure limit was basically cut by about half for many industries, which is very difficult to comply with, and also made it a very controversial change.

So you’ll notice that even though these last two updates occurred during the Trump administration, there were actually formulated during the Obama administration and weren’t finalized until 2017 and 2018. So the point being, keep in mind that these updates take many years to introduce, review, approve and implement. So again, all this happened during the Obama administration, and finally got rolled out during the Trump administration. And it’s also important to point out that OSHA didn’t really initiate any similar major standard updates over the past four years under the previous regime for the last four years. All right. So now let’s transition to talking about early Biden administration actions and indicators. So really, as we’ll see here, the Biden administration has wasted no time establishing a clear message of where they plan to go when it comes to OSHA and workplace health and safety policies. And here are the four areas that have already been impacted and that I’m going to talk about.

So number one, his pledge to be the most pro union president. His current OSHA number two appointee that I’ll talk about. His workplace COVID-19 executive order, that included strong indicators for increased enforcement that I’ll talk about. And then he’s already proposed another major update to the Hazard Communication Standards. So again, let’s start with Biden’s pledge. So in response to Biden’s pledge to be the most pro union president, Democratic Congressman Mark Pocan of Wisconsin had this to say. So he said that, “People ultimately want to make sure that they have safe working conditions and good benefits and wages and the ability to have some say in their workplace, and unions are the best way to deliver that.” So I included this quote to summarize what this Biden pledge really means when it comes to workplace safety. In other words, if Biden commits to unions, then by default he’s also committing to promoting workplace health and safety, as well as strong enforcement policies, which unions always support both.

Also, contained within the COVID-19 executive order that was issued in January, where the following statements and requirements which strongly indicate a return to increased enforcement. So in section one, here’s the overall policy. It says it right there in black and white, I copied and pasted this. Their policy is ensuring the health and safety of workers is a national priority and a moral imperative. So this is obviously a very strong statement and sets the tone for future enforcement policy, in my opinion. Yeah, I also included this statement, enforcing worker health and safety requirements, and pushing for additional resources to help employers protect employees. And then he talked about launching a national program to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of serious, excuse me, of workers at serious risk. So again, with this executive order that he initiated I think a week after taking office, he’s already setting the tone here.

All right. So building on his commitment to unions, in January Biden has already appointed Jim Frederick as deputy assistant secretary of OSHA, which is actually the number two position in OSHA. He hasn’t actually appointed the number one position yet. So Frederick is a former union leader with the union, excuse me, United Steelworkers Union, and has an established track record and reputation for believing in strong workplace health and safety protections. And he’s also a strong supporter of enforcement as both a deterrent and incentive for motivating employers to keep up with their safety obligations. So again, Biden is yet to appoint the number one person to lead OSHA, but this appointee with Frederick makes Frederick the acting leader, and allows Biden and Frederick to begin implementing his new policies, which he has already begun to do as you’ll find out in a moment here, and as we’ve already talked about. And as mentioned before, Biden has already appointed Dr. David Michaels to sit on his workplace COVID-19 advisory board, and is yet to appoint the OSHA leader.

So it’ll be interesting to see if he appoints Michaels to that post. We’ll just have to wait and see what happens. But again, he’s already part of the administration. And also on a side note in comparison to the Trump administration, the Trump administration didn’t actually nominate anyone to lead OSHA until October, of 2017, almost two years into his administration. And it was a guy named Scott Mugno, who was a former head of safety at FedEx. And believe it, or not, Mugno was never approved and finally withdrew his nomination in May, of 2019. So actually for the entire four year Trump administration, there was never an acting lead of OSHA. There was nobody in the leadership role at OSHA during the entire administration.

Okay. So getting back to the workplace COVID-19 executive order. So on January 21st Biden issued an executive order requiring improvements to workplace COVID-19 protections. So this included a requirement for OSHA to conduct an independent review to determine if new OSHA standards should be developed to protect workers during the pandemic. And when I say standards, I’m talking about laws, these would be federal laws that employees, or employers, have to follow. So the deadline for this is actually March 15th, which is right around the corner. And it’ll be interesting to see if any of these new COVID-19 health and safety laws are issued. We just don’t know yet. Then the following week, OSHA responded to this executive order by issuing enhanced guidance and recommendations for workplace COVID-19 response. And so keep in mind, again, these aren’t formal laws, or standards, but they do set a new tone for how they expect employers to respond until the pandemic is over. Biden also already introduced a proposal uptake to the Hazard Communication Standards.

So as I already mentioned, the Hazard Communication Standard underwent a major update in 2012, but the Biden administration has already proposed another major uptake that just like 2012 is intended to catch up with the Globally Harmonized System as follows. So it could, if it happens, it’ll include revised criteria for classification of certain health and safety hazards associated with chemicals, revised provisions for updating labels and labeling small containers, and technical amendments related to the contents of safety data sheets. So again, material safety data sheets were changed to safety data sheets in 2012. Much more detailed information. Now they’re going to make it even more detailed than they were before. And then updated terms and definitions used in the standard. So this is what we can expect to happen for HazCom. All right. So now let’s begin to wrap up the webinar by talking about how employers should prepare under the new regime here.

So I’ll begin by reviewing some OSHA enforcement trends and facts that you need to be aware of. Then I’m going to talk about the five most common OSHA compliance mistakes and myths that I’ve identified and seen over and over again throughout my career, which often lead to major problems like injuries and failed inspections for companies. The point being that, as I describe these common mistakes, I’d like each of you to consider whether, or not, your company is possibly making them. And if so, take stock of that and try to take the opportunity to fix them in preparation. Then I’ll give you a quick OSHA compliance evaluation, which I’ve used over the years, that is very effective in helping you to quickly determine whether, or not, your company has some key OSHA requirements in place or not. And then finally, I’ll end off with a free offer that’s designed to help your company assess its current compliance condition in areas that need attention. So this is a free offer, it’ll be a great a resource for helping your company get prepared for all of this. Right?

So just as a quick review of OSHA enforcement trends, so OSHA can inspect your business at any time, and without warning. So if that happens your company needs to be prepared because this can be a very time-consuming, very disruptive, stressful, and costly thing to deal with if you’re not prepared for that happening. Also, keep in mind that the average OSHA fine is typically between 35,000 and $80,000 per inspection. And that’s because on average, they’re going to find anywhere between five and 10 serious violations that, again, have a maximum fine of $7,000 each, but as we talked about earlier, fines can easily exceed to hundred thousand dollars, or more, for unprepared companies. Also, keep in mind this troubling statistics.

So, for the last six years we’ve been hosting a health and safety seminar for Austin Regional Manufacturers Association, and local OSHA reps always participate in that event. And this year’s event just happened last week, where I learned that there’s actually been a 26% increase in workplace fatalities between 2009 and 2020. So as you can see, that’s a dramatic increase. And according to the OSHA representative, nobody really knows the definite cause of this, but it’s widely believed that the lack of enforcement efforts over the past four years, or at least the perception of lack of enforcement, are primarily causes for this increase in workplace fatalities. So regardless, Biden and OSHA are obviously well aware of this statistic, and are likely to react with increased focus on enforcement efforts.

All right. So here’s where I want to do a quick OSHA compliance evaluation. So this is something that you want to, I’m just going to go ahead and give you a quick quiz. You can think about it, whether, or not, your company has these things in place. So we talked in brief about the Hazard Communication Program before, but here are some of the key requirements that employers must keep up with. So one of the main ones is that you have to have a current and updated inventory of all the hazardous chemicals that you have on site. And then you have to have a matching safety data sheet for each one of these. And then you have to give your employees immediate access to all these safety data sheets, whether they’re hard copies, in a binder, or a shared electronic folder that they have immediate access to without having to request permission. And then you also have to train your employees on how to read and understand safety data sheets, and then document that training.

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So again, these are some of the key requirements of the HazCom program. If you don’t think that you have these things in place, that’s something that you want to take action on. Then the PPE program, this is OSHA’s personal protective equipment standard. Some of the key requirements there, you have to have written and signed PPE hazard assessments for each job task at your facility, or out in the field. And then you have to train each of your employees on how to properly use PPE, don and doff PPE. And then you have to document this training. So these are some key requirements under the PPE standard. And then let’s talk about the OSHA’s lockout/tagout program. So this is OSHA’s standard for protecting workers from the accidental release of hazardous energy while working on, or servicing equipment with multiple energy sources. And here are some of the key major requirements of that standard.

Number one, you have to have written lockout/tagout procedures. Specific procedures for each one of your pieces of energized equipment that fall under the standard. So a lot of companies make mistake of having just a generic procedure, that doesn’t meet the standard. You have to have one developed for each piece of equipment in your facility that has multiple energy sources. Then you have to train all of your, what are called authorized employees, on how to follow these procedures. And you have to document that training. So they have to be trained and have to follow the procedures so they can properly lockout/tagout, before going to work on that equipment, so that they’re kept safe while doing that work. And then you have to train all of your other employees on what’s called effective, excuse me, effective lockout/tagout training, so that they’re aware of what lockout/tagout means, what the locks mean, what the tags mean, and so forth, so that they don’t interfere with that while someone’s doing work on a piece of equipment.

And then you actually have to conduct an annual audit of these lockout/tagout procedures to ensure that your employees understand and follow them. So, lockout/tagout it’s one of the most commonly cited standards because it’s so complicated and complex and tough, especially for small companies to keep up with. And then finally, your OSHA 300 logs. So these are OSHA’s injury and illness recording forms. If you get inspected, you have to have updated and correct OSHA 300 logs for the past five years, and you have to post them every year from February through March. And a lot of companies aren’t aware of that requirement, and don’t do it, but if you get inspected, that’s one of the first things there are going to ask for, are your OSHA 300 logs.

So again, keep in mind that hazard communication and lockout/tagout, are two of the most commonly cited standards year after year. And that’s because there are two of the most complicated and difficult to manage standards, again, for small companies. And again, just keep in mind, if you get inspected, this is what they’re going to be evaluating. And then I want to talk real briefly about five of the most common mistakes and myths that I see out there. By far the most common mistake that I see a company engage in is when they decide to dual task a staff manager, or member with OSHA compliance. And this strategy almost never works for two basic simple reasons. Number one, these people almost never have the knowledge, or experience, to understand, let alone manage everything that’s required.

And secondly, their primary role with the company typically contributes to the company’s bottom line. And therefore they must devote the majority of their time and energy towards that primary role, leaving little, if anything, leftover for compliance. So, I’ve seen this mistake made over and over again, and I’ve talked to these people throughout my career, and they always feel overwhelmed. And a lot of times they’re afraid to even raise their hand and say, look, I can’t keep up with this, I don’t understand what’s going on here, because they’re afraid of getting fired. So this is a very common mistake that could lead to all kinds of problems for companies. Number two, another very common mistake that I hear over and over again, is when a company somehow believes that they can outsource their OSHA compliance to their insurance, or workers’ compensation carrier.

And this doesn’t work for four primary reasons. Number one, your workers’ comp carrier has no legal obligation to manage OSHA compliance for any of their policy holders. They just don’t. The only thing that they’re actually required to do, is to conduct an annual inspection, which often has equal focus on safety, as well as potential loss issues like fires. And really what that means is that a lot of the health and safety issues at a company are often missed during that inspection. Also, keep in mind that your loss control agent typically has a book of hundreds of accounts to manage, hundreds of policy holders. And therefore that person, even if they’re a good safety person, they just don’t have the time, or resources, to manage safety for any individual policy holder, it’s just impossible.

Also, keep in mind that your worker’s comp carrier is going to give you access to a lot of generic safety resources, like templates, training videos, and that kind of thing, but these generic resources don’t meet OSHA standard for developing customized resources that address your company’s specific health and safety hazards. So again, they’re going to give you a lot of great resources, but you have to update them and modify them to meet your company’s specific requirements. And a lot of companies really struggle to make that happen. And so the same thing, if you’re aware of OSHCON, that’s OSHA’s consultation service, which is free, and is great, but don’t confuse that with managing your OSHA compliance. So a lot of companies who utilize OSHCON believe that they’re covered when they’re not. And it’s really for a lot of the same reasons that I just talked about with your worker’s comp carrier.

Although I will say that when they do their annual inspections that they can do for free, they’re obviously going to do a lot better job by identifying all the health and safety hazards at your company, but the trick is, and the problem is, that once they handle that inspection, and that report and all the recommendations, now it’s up to you as a company to manage everything and keep up with it moving forward. And that’s exactly where most companies, in my experience, really struggle to keep up. And finally, as I just alluded to, a lot of companies make the mistake of either buying, or downloading a generic safety manual off the internet, putting it on the shelf, or putting it on a shared electronic drive. And somehow, believing that this equates to compliance. And the problem is, there’s a couple of problems.

Number one, again, it has to be customized and updated to address your company’s specific health and safety hazards. And number two, what a lot of companies don’t realize is that there is a lot of aspects within your manual that you actually have to implement and manage. And I’m talking about inspections, procedures, drills, employee training, and so forth. And again, a lot of companies make the mistake of believing that manual is all they need, but there’s a lot of work to be done once you have that manual, to customize it, implement and manage everything. And then, again, a lot of companies make the mistake of using generic training, either online training, or DVDs and so forth. And again, like I’ve been talking about, that generic training does not meet OSHA’s standard for customizing to your company’s specific health and safety hazards, which are unique to every company. And that, again, makes it impossible for any generic resource to meet that standard.

All right. So let me end off here with our free offer. So given all the information contained today, I encourage all of you to ask yourself, if your company is compliant, or maybe if you’re at risk. And in order to help out with that, we’re offering to conduct a free, no obligation, confidential summary, OSHA compliance assessment. So this includes either a live, or a virtual inspection, to identify those companies’ specific health and safety hazards, something I talked about. We can also review your safety manual if you have one, your training requirements and records. Just keep in mind, we can make this as comprehensive, or as casual as you’d like, either way works. I actually enjoy doing these assessments and educating small companies on all these issues, and we’ll be happy to help out. So if you’re interested in taking us up on that offer, feel free to write down that phone number that you see there, and, or, that email address and contact me, and then we can get that scheduled.