The Oregon Legislature, in response to concerns that the Oregon Occupational Safety and Health Division (Oregon OSHA) penalties were not sufficient, introduced legislation (Senate Bill (SB) 592) that would significantly increase the amounts of civil penalties for violations and allow Oregon OSHA to conduct in-depth, wall-to-wall inspections under certain circumstances.
For each “serious” violation that caused or contributed to an employee’s death, SB 592 would increase penalty amounts to not more than $50,000, but not less than $20,000. Each violation not characterized as serious (i.e., “other-than-serious” violations) would result in a penalty of up to $13,653, regardless of whether a death was involved. Each serious violation not involving a death would also carry a penalty of up to $13,653. By contrast, current law simply mandates civil penalties of not less than $50 for a serious violation, and of no specified minimum for other-than-serious violations, with no specific increase required in cases involving death.
Under SB 592, each willful or repeat violation would carry a penalty of not more than $136,532 and not less than $9,753 under the proposed law. If, however, the willful or repeat violation caused or contributed to the death of an employee, the civil penalty amount would be not less than $50,000 and no more than $250,000 for each violation. No penalty adjustments for employer size would be given for repeated violations that were willful violations, or serious violations resulting in death. Current law allows for penalty adjustments based only on employer size.
|Proposed (SB 592) and Current Oregon OSHA Civil Penalties|
|Serious Violations (Death Involved)||Other-Than-Serious Violations
(Death may be involved)
|Willful or Repeat Violations (Death Involved)||Willful or Repeat Other-Than-Serious Violations (Death Not Involved)||Penalty Adjustments for Employer Size?|
|SB 592 (Penalties Adjusted Annually on CPI-U (West Region)||$20,000–$50,000||Up to $13,653||$50,000–$250,000||$9,753–$136,532||No|
|Current Oregon OSHA Penalties||Not less than $50||No penalty amount specified||$100 daily minimum||$50 daily minimum||Yes|
The bill would also require Oregon OSHA to conduct a “comprehensive inspection” of a workplace whenever an “occupational death” occurs in a “fixed place of employment” within one year of the closing conference associated with the death. This comprehensive inspection would be in addition to any other inspections that may be conducted pursuant to complaints filed against the place of employment. Similarly, whenever three or more willful or repeated violations occur at a fixed place of employment within a one-year period, Oregon OSHA will conduct a “comprehensive inspection” of the place of employment within one year following the closing conference associated with the most recent willful or repeated violation. The bill would endow inspectors with considerable discretion by defining a “comprehensive inspection” as a “substantially complete and thorough inspection of all potentially hazardous areas of a place of employment that may, as a result of [the] professional judgment of the [inspector], be deemed comprehensive.”
Similar to penalties under the federal Occupational Safety and Health Administration (OSHA), Oregon OSHA penalties would adjust annually according to the Consumer Price Index for All Urban Consumers, West Region (All Items), as published by the Bureau of Labor Statistics of the U.S. Department of Labor. Thus, just as penalties under federal OSHA have increased more than twofold in seven years, the penalties listed here could well do the same, depending on the rate of inflation.
The proposed legislation’s financial impact on Oregon employers, particularly those that experience a workplace death or are cited for willful or repeated violations, could be significant, given that higher imposed penalties followed by comprehensive, wall-to-wall inspections of all “potentially hazardous” areas of involved workplaces could expose employers to more citations with considerable attached penalties.
Senate Bill 592 is currently in committee.
Ogletree Deakins will continue to monitor and report on developments with respect to Oregon OSHA and will post updates on the firm’s State Developments and Workplace Safety and Health and blogs as additional information becomes available. Important information for employers is also available via the OSHA Tracker, as well as the firm’s webinar and podcast programs.