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OSHA Can Base Penalties On Each Employee Not Provided PPE

    Client Alerts
  • April 30, 2010

For serious non-repeat violations, civil penalties for OSHA safety violations are limited to $7000 per violation. Earlier this month, the U.S. Court of Appeals for the District of Columbia Circuit concluded that OSHA may assess separate fines for each employee found to be in violation of the same safety standard. In National Assn. of Home Builders v. OSHA, a trade association challenged OSHA's interpretation of the Personal Protective Equipment standard. A 2008 OSHA rule stated that failure to provide employees with mandatory respirators, and failure to train employees on their use constitutes an individual violation for each employee exposed to the hazard. Other PPE requirements give OSHA inspectors the same authority.

The trade association contended that only Congress has the authority to allow individual employee-based citations for identical violations of safety standards. The D.C. Circuit rejected this argument, upholding the OSHA rule. In the absence of clear restrictions otherwise, Congress' grant of authority to OSHA to establish rules and regulations includes a grant of authority to determine the "unit of prosecution."

Unless overturned by the Supreme Court, this decision gives OSHA the authority to multiply the fines applicable to an employer's single safety violation. Given the Obama Administration's emphasis on vigorous inspections and enforcement of safety standards, this power will likely be used to significantly increase the magnitude of financial penalties for violation of workplace safety standards.