By Benjamin S. Lowenthal, Hendrick, Phillips, Salzman & Siegel

Increased Occupational Safety and Health Administration (OSHA) penalties are here, and a greater number of OSHA inspections and corresponding citations are anticipated with the Biden Administration now leading OSHA. Subcontractor employers should always focus on worker safety. However, now more than ever, it is critical that subcontractors assess jobsite safety hazards to avoid the likely citations due the anticipated increased OSHA enforcement efforts under the Biden Administration.   

What We Know

Although we can only predict what OSHA will do under the Biden Administration going forward, we know that the U.S. Department of Labor has adjusted the penalty amounts for violations of the Occupational Safety and Health Act to account for inflation.

In 2015, Congress passed, and President Obama signed, the Federal Civil Penalties Inflation Adjustment Act Improvements Act (2015 Inflation Adjustment Act for short) as part of the Bipartisan Budget Act of 2015. Although the Bipartisan Budget Act of 2015 was a two-year deal that was negotiated quickly to avoid a default on our nation’s debt, it was unique because it contained a provision that allowed OSHA to increase its maximum penalties for the first time in 25 years. Most government agencies typically have the authority to adjust their maximum penalty amounts annually for inflation. However, OSHA had not been allowed to adjust its penalties amounts since they were enacted over 25 years ago. Importantly, the 2015 Inflation Adjustment Act allows OSHA to annually adjust the maximum penalty amounts to reflect inflation, similar to other government agencies.

For 2021, OSHA announced the following changes to the Occupational Safety and Health Act maximum penalty levels:

The increased penalty amounts, now expected annually in January of each year, only provide that much more incentive for subcontractors to take the necessary steps to assess workplace safety and ensure compliance to prevent costly and unnecessary OSHA citations.

What We Anticipate

In addition to the increased penalty amounts, we anticipate enhanced enforcement efforts by OSHA, as opposed to an emphasis on compliance assistance, which we traditionally see in Republican administrations. President Biden has made it clear that he intends to have OSHA significantly beef up its enforcement efforts over the next four years. Evidence of this increased focus on enforcement came in the second day of his presidency when President Biden signed an executive order on protecting worker health and safety related to COVID-19 that specifically directed OSHA to review existing enforcement efforts. And during the presidential campaign, President Biden issued a plan that specifically stated that he wanted to “[d]ouble the number of OSHA investigators to enforce the law and existing standards and guidelines.” Indeed, it appears the Biden Administration is on track as OSHA currently lists on its statistics website “approximately 1,850 inspectors,” which includes state partner inspectors, responsible for the health and safety of workers. That is up from approximately 800 or so federal OSHA inspectors in 2020. Undoubtedly, the increased number of inspectors will increase the likelihood of OSHA site visits and corresponding citations.  

In assessing what safety hazards OSHA inspectors will be targeting, OSHA’s historical data is quite helpful. Five out of the 10 most cited standards fall under the Construction Industry standard, which include fall protection (1^st most cited standard; 29 CFR 1926.501), scaffolding (4^th most cited standard; 29 CFR 1926.451), ladders (5^th most cited standard; 29 CFR 1926.1053), fall protection-training requirements (8^th most cited standard; 29 CFR 1926.503), and eye and face protection (10^th most cited standard; 29 CFR 1926.102).  

In light of the increased OSHA penalty amounts and anticipated increase in inspections and citations, now is the time for subcontractors to identify and eliminate safety hazards on jobsites, especially under the standards listed above. Subcontractors would be wise to be proactive now, instead of when an OSHA inspector is on site, in addressing safety hazards in order to ensure compliance with OSHA safety standards and prevent costly penalties.

Benjamin S. Lowenthal is an associate with Atlanta-based construction law firm Hendrick, Phillips, Salzman & Siegel and is a licensed lawyer in the states of Georgia and New York.  Ben’s practice includes labor & employment matters within the construction industry. Ben received his undergraduate B.S. from the University of Georgia and his J.D. and LL.M. in Environmental Law from the Elisabeth Haub School of Law at Pace University. For more information, contact the author at (404) 522-1410, bsl@hpsslaw.com or visit www.hpsslaw.com.