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Senate Bill Would Expand OSHA Injury Reporting and Recordkeeping Requirements

Posted: April 22, 2013

Sen. Patty Murray (D-WA), with 10 co-sponsors, has introduced S. 665, the "Protecting America's Workers Act" (S. 665). This bill would revise federal regulations concerning the reporting and recording of occupational injuries and illnesses occurring at a work site to require site controlling employers to keep a site log for recordable injuries and illnesses of all employees, including independent contractors, performing work there. In funeral service, this would include non-employee hairdressers, trade embalmers and other non-employee workers.

The bill defines site controlling employer as the one with primary control over the work site at which employees of more than one employer work. It ignores that some employers, such as those in funeral service, are currently exempt from maintaining injury and illness logs and, therefore, are not presently required to record injuries and illnesses of individuals who are not employees but are working at the funeral home.

The bill also expands the rights of employees in the citation process to include former employees and family members.

Also proposed in the bill are increases civil and criminal penalties for certain OSHA violations. These increases include increasing the civil penalty for repeated or willful violations from a maximum of $70,000 to a maximum of $120,000, and raising the minimum penalty from $5,000 to $8,000. Additionally, the maximum penalty for a serious violations is increased from $7,000 to $12,000, and serious violations that have caused or contributed to the death of an employee have civil penalties increased to an amount of not more than $50,000 for each violation but not less than $20,000 for each violation, with the exception that an employer with 25 or fewer employees is charged a minimum penalty of $10,000 for each violation.

For criminal violations, in addition to or in lieu of a criminal fine, the bill would increase the penalty for a known violation that causes or contributes to the death of an employee from imprisonment for not more than 10 years to not more than 20 years.

The bill would also create a new penalty of a criminal fine and/or imprisonment for not more than five years for a known violation that caused or significantly contributed to serious bodily harm of any employee but did not cause death. For a second offense of this nature, the penalty is increased to a criminal fine and/or imprisonment of not more than 10 years. Serious bodily harm is defined as a bodily injury or illness that involves a substantial risk of death; a protracted unconsciousness; protracted and obvious physical disfigurement; or protracted loss or impairment, either temporary or permanent, of the function of a body member, organ or mental facility.

S. 665 also states that interest on civil penalties owed will begin to accrue on the date a party contests a citation, which could chill an employer's willingness to exercise his/her right to contest a penalty.

Finally, the bill would require State Plan states to amend their regulations to conform with the requirements of S.665 within 12 months of its enactment.

NFDA has expressed its concerns to the Chairman of the Senate Committee, noting that S. 665 that it is in conflict with the current record keeping exemptions for low hazard employers, such as funeral service, it imposes an unnecessary and unwarranted burden on small businesses, and that its excessively punitive approach to OSHA compliance is unjustified.