Overview of OSHA

OSHA's mission is to assure safe and healthful working conditions for working men and women by setting and enforcing standards and providing training, guidance, outreach, education, and compliance assistance. With a budget of approximately $550 million, OSHA has a staff of 2,200, including over 1,000 inspectors. States with OSHA-approved state job safety and health plans have at least an additional 1,100 inspectors. Field activities are directed by ten regional administrators, who supervise approximately 85 local area offices throughout the United States. OSHA has approximately 350 staff in the National Office.

The OSH Act covers employers and their employees in the 50 states, the District of Columbia, Puerto Rico, and other U.S. territories. Coverage is provided either directly by the Federal OSHA or by an OSHA-approved state job safety and health plan. The OSH Act defines an employer as any "person engaged in a business affecting commerce who has employees, but does not directly cover public employees." State plan states cover public employees, and federal employees are covered by OSHA under Executive Order 12196, Occupational Safety and Health Programs for Federal Employees.

Thus, we are a small agency with a very large mission — the safety and health of roughly 130 million workers, employed in somewhere between 7 and 8 million workplaces all across the country. OSHA and its state partners are accomplishing the gains discussed above with relatively fewer personnel. In the late 1970s, there were about 36 federal and state compliance officers for every million covered workers. Currently, there are fewer than 20 inspectors for every million covered workers.

We carefully leverage our limited resources for maximum impact. OSHA recognizes that most employers want to keep their employees safe and protect them from workplace hazards. But there are still far too many employers that knowingly cut corners on safety and neglect well recognized OSHA standards and common sense safety measures. For these employers, avoiding OSHA penalties remains an effective incentive to comply with the law and protect their employees.

We also don't want to waste taxpayer dollars or employers' valuable time inspecting workplaces that are already doing the right thing. For that reason, OSHA's enforcement program strives to target the most dangerous workplaces, where workers are most likely to be hurt on the job. OSHA's penalty system takes into account the size and behavior of employers, with higher fines for repeated and willful violations, and substantial discounts for small employers.

At the same time, OSHA provides extensive assistance to employers who want to protect their workers, through our website and publications, webinars, training programs and more, many geared toward small- and mid-sized employers. In addition, OSHA provides free and confidential on-site consultations for small- and medium-size employers that request assistance in protecting their workers and complying with OSHA standards. OSHA also provides additional cooperative programs designed to encourage, assist and recognize efforts to eliminate hazards and enhance workplace safety and health practices.

The OSH Act Provisions and Requirements

The OSH Act assigns OSHA two principal functions: setting standards and conducting inspections to ensure that employers are providing safe and healthful workplaces. OSHA standards may require that employers adopt certain practices, means, methods, or processes reasonably necessary and appropriate to protect workers on the job.

Compliance with standards may include implementing engineering controls to limit exposures to physical hazards and toxic substances, implementing administrative controls, as well as ensuring that employees have been provided with, have been effectively trained on, and use personal protective equipment when required for safety and health, where the former controls cannot be feasibly implemented. The OSHA standard setting process is lengthy and complex, with multiple opportunities for public input at various stages of the process.

Federal OSHA Standards are grouped into four major categories: general industry (29 CFR 1910); construction (29 CFR 1926); maritime - shipyards, marine terminals, and longshoring (29 CFR 1915-19); and agriculture (29 CFR 1928). While some standards are specific to just one category, others apply across industries. Among the standards and regulations with similar requirements for all sectors of industry are those that address access to medical and exposure records, personal protective equipment, and hazard communication.

OSHA's safety and health standards — including rules for asbestos, fall protection, cotton dust, trenching, machine guarding, benzene, lead and bloodborne pathogens — have prevented countless work-related injuries, illnesses and deaths. For example, OSHA's 1978 Cotton Dust standard helped drive down the rates of brown lung disease among textile workers from 12 percent to 1 percent. Since OSHA enacted the grain handling standard in the late 1980s, there has been a significant reduction in grain explosions resulting in far fewer worker injuries and deaths. Since OSHA revised the excavation and trenching standard in 1989, fatal trenching injuries have decreased significantly, even as construction activities have increased. OSHA's Bloodborne Pathogens Standard and the Needlestick Safety and Prevention Act have made occupationally acquired Hepatitis B infections a thing of the past for healthcare workers.

The OSH Act also encourages states to develop and operate their own job safety and health programs. OSHA approves and monitors these "state plans," which operate under the authority of state law. There are currently 28 OSHA State Plan States, of which 22 states and jurisdictions operate complete state plans (covering both the private sector and state and local government employees) and six (Connecticut, New Jersey, New York, Illinois, Maine, and the Virgin Islands) that cover state and local government employees only. States with OSHA-approved job safety and health plans must have programs that are at least as effective as the federal program.

OSH Act Penalties

Under the OSH Act, OSHA is authorized to conduct workplace inspections and investigations to determine whether employers are complying with standards and regulations issued by the agency for safe and healthful workplaces. OSHA also enforces Section 5(a)(1) of the OSH Act, known as the "General Duty Clause," which requires that every working man and woman must be provided with a safe and healthful workplace. OSHA has very detailed inspection and citation processes that are outlined in OSHA's Field Operations Manual, publicly available on the OSHA website and discussed in greater detail later in my testimony. (2)

The OSH Act authorizes OSHA to issue penalties for hazards and violations that threaten the health and safety of workers and sets forth the types and amounts of potential penalties. OSHA penalties are not specific to the standard being violated; they are instead specific to the nature of the violation. The OSH Act specifies different types of citations including serious, other-than-serious, willful, or repeated.

Serious: According to the OSH Act, "A serious violation shall be deemed to exist if there is a substantial probability that death or serious physical harm could result".

Other-than-Serious: Other-than-serious violations are not statutorily defined, but OSHA characterizes violations as other-than-serious in situations where the injury or illness that would be most likely to result from a hazardous condition would probably not cause death or serious physical harm, but would have a direct and immediate relationship to the safety and health of employees. For example, failure to designate a "Caution" area specifically with yellow markings, as required by 29 CFR 1910.144(a)(3) would most likely be an Other Than Serious violation. A failure to give employees information on respirators to those employees voluntarily using dust masks would most likely be an Other Than Serious violation of 29 CFR 1910.134(c)(2)(i).

Willful: A willful violation exists where an employer has demonstrated either an intentional disregard for the requirements of the OSH Act or a plain indifference to employee safety and health.

Repeat: An employer may be cited for a repeat violation if that employer has been cited within the previous five years for the same or a substantially similar condition or hazard and the citation has become a final order of the Occupational Safety and Health Review Commission. Substantially similar conditions may include a violation of the same hazardous condition but in different circumstances, such as two different types of unguarded machines. Although the hazard is the same, the way the employee is exposed to the hazard can be different. For example, a violation can be substantially similar even though the initial violation and hazard involved a different type of machine (e.g. unguarded press brake versus an unguarded drill press).

Under Section 17 of the OSH Act, OSHA penalties for "willful" or "repeat" violations have a maximum civil penalty of $70,000 but not less than $5,000 for each willful violation. (3) Penalties for "serious" violations have a maximum of $7,000 per violation. (4) Until recent Congressional action, these figures have remained static since 1990, and have not been properly indexed to inflation. However, the budget bill passed by Congress and signed by the President in November 2015 provides an opportunity for the penalties to be increased and appropriately indexed to inflation going forward.

The purpose of the penalties is deterrence. Funds collected by OSHA for employer fines are deposited with the U.S. Treasury as required under the OSH Act, which states that "[c]ivil penalties owed under this Act shall be paid to the Secretary for deposit into the Treasury of the United States and shall accrue to the United States." (5) OSHA does not have authority to use penalty funds for agency operations.

OSHA carefully considers the impact of our penalties on small businesses. The OSH Act requires OSHA to take into account several factors in setting penalties, including size of the employer, history and good faith. In setting a penalty, OSHA generally reduces penalties for small employers, as well as for employers who are shown to be acting in good faith or have a history of no OSHA citations over the previous 5 years. Good faith penalty reductions are not applied to "high gravity serious," "willful," "repeat" and "failure to abate" violations. For serious violations, OSHA may also reduce the proposed penalty based on the gravity of the alleged violation. The current average OSHA penalty for a serious violation is currently very low at around $2,000 for all employers.

Inspections and Citation Process

Workplace inspections and investigations are conducted by OSHA compliance safety and health officers (CSHOs or compliance officers) who are safety and health professionals trained in the disciplines of safety and industrial hygiene. OSHA CSHOs are given strict procedures that they must follow.

OSHA conducts two general types of inspections: programmed and unprogrammed.