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OSHA's egregious penalty policy under fire

American Society of Safety Engineers (ASSE) President James 'Skipper' Kendrick applauds the recent move by OSHA chief John Henshaw to appeal the Occupational Safety and Health Review Commission's decision in Secretary of Labor v. Ho. If allowed to stand, the Ho decision would limit OSHA's ability to crack down on employers that willfully fail to protect workers from known safety and health risks, according to ASSE.

"ASSE's members are concerned that the Ho decision improperly limits OSHA's ability to continue enforcement actions under the egregious conduct policy," Kendrick stated in a letter sent to Henshaw.

Under OSHA policy, OSHA inspectors are instructed to cite employers for multiple violations of the same standard where the employer has demonstrated one or more of the following characteristics: persistently high rates of illness/injury or fatalities; extensive history of prior violations; intentional disregard of health and safety responsibilities; or bad faith (indifference to standards or requirements).

The Secretary of Labor v. Ho case concerned OSHA's multiple issuance of willful citations to Eric K. Ho and two companies he controlled for allegedly violating the asbestos standard in construction, for failing to provide respiratory protection and asbestos training to 11 workers. The workers were hired to remove asbestos-containing materials from a hospital.

The commission ruled in September that OSHA's imposition of per-employee citations of the asbestos standard was not reasonable and rejected OSHA's egregious policy.

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