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News Release USDL: 96-292
Monday, July 23, 1996
Contact: Frank Kane (202) 219-8151
Publications: (202) 219-4667

In another move to implement President Clinton's efforts to reinvent government, the Occupational Safety and Health Administration (OSHA) will test a system that would reduce penalties for employers with excellent safety and health programs.

Assistant Secretary of Labor for Occupational Safety and Health Joseph A. Dear said, "The New OSHA promises a departure from any 'one-size-fits-all' regulatory approach that treats all workplaces and all hazards equally. In issuing penalties for safety and health violations, we will treat employers who implement good safety and health programs differently from those who fail to make such efforts.

The test will involve revisions designed to achieve penalty application goals described in President Clinton's May 1995 National Performance Review report "The New OSHA: Reinventing Worker Safety and Health." It will be conducted in six OSHA area offices in: Harrisburg, Pa.; Austin, Tex.; Billings, Mont.; Cincinnati, Ohio; Atlanta, Ga. (East); and Atlanta, Ga. (West) starting Aug. 1 and run until Nov. 15.

Our goal, as always, is to increase workplace safety and health, and help ease the adversarial relationship between business and regulators. The primary responsibility for ensuring safety and health will be in the hands of managers and workers at individual worksites. The pilot will test whether these policies will help achieve that goal."

OSHA wants its penalty policy to provide:

• increased penalty reductions for smaller employers.

• better incentives for employers to implement good safety and health programs.

• little change from present penalties for average-sized employers with average programs.

• serious consequences for serious violators.

• penalties adequate for deterrence.

With the pilot test, OSHA hopes to learn how well the proposed changes achieve the objectives; if the system works for compliance officers, and if the system makes sense to employers.

During the same period, the six OSHA offices will also be pilot testing the new Program Evaluation Profile (PEP), used to assess employer safety and health programs in general industry workplaces.

Careful pilot testing is a critical element in all of the agency's reinvention efforts, Dear said. OSHA is committed to experimenting with different strategies to meet its mission of reducing injuries, illnesses and fatalities across the nation.

Dear cited a "tremendous gap" between the agency's mission, to make the six million American workplaces as safe and healthful as possible for more than 90 million workers, and the resources available to do the job--about $305 million in the current year. A new penalty policy that emphasizes partnership and encourages safety and health programs, he said, will help to close that gap.

A good safety and health program generally includes management leadership; employee participation; analysis of the worksite to identify safety and health hazards; effective elimination or control of the hazards; and safety and health training.

Single free copies of the notices on the two pilot tests may be obtained after Aug. 1, 1996 by sending a self-addressed label to the U.S. Department of Labor, OSHA/OSHA Publications, P.O. Box 37535 Washington, DC 20013-7535. Telephone (202) 219-4667, fax (202) 219-9266.

SUMMARY OF PENALTY REVISIONS TO BE TESTED

Key features of the revised system to be tested include:

• Stipulating that no penalties shall be proposed for other-than-serious violations if the employer had 250 or fewer employees (company-wide) at all times during the past 12 months and the current inspection does not reveal any willful, repeated or failure-to-abate violations. (This policy does not apply to violations of regulatory requirements such as requirements for recordkeeping or for posting citations.)

• Changing the penalty adjustment factors for size to:

• one to 10 employees, 80 percent reduction;

• 11 to 30 employees, 65 percent reduction;

• 31 to 100, 40 percent reduction;

• 101 to 250 employees, 20 percent reduction.

There will be no size adjustment penalty reduction for employers with 251 or more employees. (If the inspection finds any violations classified as high-gravity serious, willful, repeated or failure-to-abate, the size adjustment will be limited to no more than 40%)

• Providing a good faith penalty adjustment factor ranging up to an 80 percent reduction based on evaluation of the employer's overall safety and health program. No good faith reduction will be given when a repeated, willful or failure-to-abate violation is found in the current inspection or when the worksite has no overall safety and health program or less than a developmental program. Employers will receive no more than a 40 percent reduction for good faith if the worksite has a lost workday injury rate at or above the national average for the industry or there are any high gravity serious violations or more than a few total violations. If a worksite qualifies for a 60 percent or 80 percent good faith reduction, no penalties shall be proposed for other-than-serious violations.

• Increasing the penalty for high gravity serious violations to a mandatory $7,000 -- the statutory maximum.

An employer who had a previous OSHA inspection within the last five years with no citation for serious, willful, repeat or failure-to-abate violations would receive a penalty reduction of 10 percent based on history. The area director may determine that a reduction for history can be given in other circumstances.

The area offices involved in the pilot test will determine the appropriate reduction percentages for size, history and good faith and add them, also adding any quick-fix reduction for abating hazards for each violation to which it applies. The total may not exceed 100 percent. (If the sum of all reduction percentages exceeds 100%, any percentage over 100 percent is to be disregarded.) The result will be the proposed penalty issued to the employer.

At the same time, the area offices are to calculate what the penalty would have been using the current method to help in the evaluation.

SUMMARY OF PROGRAM EVALUATION PROFILE (PEP) TEST

Purpose: To be used in assessing employer safety and health programs in general industry workplaces.

Elements and factors to be scored:

(1) Management Leadership and Employee Participation. In addition to those elements, the evaluation will include implementation [tools provided by management including budget, information, personnel, assigned responsibility, adequate expertise and authority, line accountability, and program review procedures].

(2) Workplace Analysis, including survey and hazard analysis, inspection, and reporting.

(3) Accident and Record Analysis, including investigation of accidents and near-miss incidents and data analysis.

(4) Hazard Prevention and Control, including hazard control, maintenance, and the medical program.

(5) Emergency Response, including emergency preparedness and first aid.

(6) Safety and Health Training (as a whole).

Overall Score: An overall score for the worksite will be calculated by taking the average of the six individual scores of the elements and dividing by six.

Program Levels: The overall score on the PEP constitutes the level at which the establishment's safety and health program is scored. A score of 5 is an outstanding program, score of 4 is a superior program, score of 3 is a basic program, score of 2 is a developmental program and score of 1 is no program or ineffective program.

Written Programs: Employer safety and health programs should be in writing to be effectively implemented and communicated. However, a program's effectiveness is more important than whether it is in writing. A small worksite may have an effective program that is not written, but is well understood and followed by employees.