Employers are unhappily surprised to learn that OSHA citations can include multiple fines for what is seemingly the same violation, particularly when fines are tallied up for each employee exposed to a hazard.   OSHA recently clarified its regulations concerning its longstanding policy of issuing per employee fines for violations of PPE and training obligations:

Under OSHA’s longstanding egregious policy first implemented in 1990, OSHA may seek a separate penalty for each discrete violation in cases where an employer has flagrantly disregarded its legal responsibilities for the safety and health of workers. The proposal addresses several recent legal decisions suggesting that differences in wording among OSHA standards may affect OSHA’s ability to issue separate penalties for each discrete violation in certain circumstances.

The regulatory clarification became necessary after several administrative and court decisions declined to enforce the imposition of per-employee fines in PPE and training cases based upon the wording of OSHA regulations. The OSHA proposed regulations revise the wording to make clear the agency’s intent to impose per-employee fines for such violations. The revisions primarily affect PPE and training related to health hazards, such as asbestos and lead. Specific changes within the proposed rule include the following: (1) new paragraphs in the introductory provisions of OSHA’s standards that all PPE and training requirements impose a separate compliance duty to each covered employee, and that each employee not protected or trained may be considered a separate violation; and (2) revisions of the language of some existing respirator and training requirements. The proposed regulations also make clear that training programs must account for differences in individual employees such as language requirements.