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On March 8, 2023, the Oregon Senate passed Senate Bill 592, which, if passed by the House and signed by the governor, would significantly increase the penalty amounts that the Oregon Occupational Safety and Health Division (Oregon OSHA) could impose on an employer for workplace safety violations. In addition, SB 592 would require Oregon OSHA to conduct comprehensive inspections of a workplace under specific circumstances, greatly expanding the number of inspections that an employer could face.

Following is a discussion on the current law with respect to Oregon OSHA penalties and inspections, and how it would change under SB 592.

A violation of a workplace safety rule is classified by Oregon OSHA as one of the following: other-than-serious; serious; willful; or repeat. The classification of the violation establishes the potential range of monetary penalties that can be assessed. A base penalty within those ranges is then calculated by evaluating the probability and severity rating of each violation.

Currently, for other-than-serious violations, an employer may be assessed a penalty of not more than $13,653, per violation, with the possibility that the violation could have a $0penalty. For serious violations, an employer may be assessed a penalty of not less than $100and not more than $13,653. If the violation is also classified as a repeat violation (i.e., it is an employer’s second or subsequent violation involving a substantially similar violation within the past three years), an employer may be assessed a penalty of between $200 and $135,653.Finally, for willful violations, an employer may be assessed a penalty of not less than $9,753and not more than $135,653. There is currently no increase in penalty amount if the violation is found to have caused or contributed to the death of an employee.

Under the version of SB 592 passed by the Senate, the upper and lower ranges of penalties would be increased across the board. Serious violations would be assessed a penalty of not less than $1,116 and not more than $15,625. Further, if the serious violation were found to have caused or contributed to the death of an employee, that penalty amount would increase to not less than $20,000, and not more than $50,000.

For other-than-serious violations, an employer could be assessed a penalty of not more than$15,625, per violation. The penalty range for willful or repeat violations not found to have caused or contributed to the death of an employee would increase to not less than $11,162 and not more than $156,259. However, if a willful or repeat violation were found to have caused or contributed to the death of an employee, an employer could be assessed a penalty of not less than $50,000 and not more than $250,000.

In addition to those increased penalty amounts, for willful violations or serious violations resulting in a work-related fatality, an employer would no longer be entitled to a penalty adjustment based on employer size. Further, SB 592 would eliminate the current law that allows for repeat violations only if the same or similar violation occurred within the previous three years. Rather, under SB 592, Oregon OSHA could review an employer’s entire history to determine whether a repeat violation has occurred.

SB 592 would also expand Oregon OSHA’s authority to conduct comprehensive inspections of workplaces in the state. When an Oregon OSHA compliance officer arrives at a place of employment for an inspection, that inspection would either be a “comprehensive inspection” or a “partial inspection.” A “comprehensive inspection” would be a substantially complete and thorough inspection of all potentially hazardous areas of the establishment, and include review of all required safety and health programs, whereas a “partial inspection” would be limited to certain potentially hazardous areas, operations, conditions, or practices at the establishment. Currently, comprehensive inspections are typically conducted only as part of a “programmed” inspection that has been scheduled from a list. Additionally, an establishment will not receive more than one comprehensive inspection within 36 months of its last comprehensive inspection.

Under SB 592, whenever an accident investigation (which would likely be a partial inspection) reveals that a violation has caused or contributed to a work-related fatality, Oregon OSHA would be required to conduct a comprehensive inspection within one year. The proposed bill would also provide Oregon OSHA with discretion to conduct a comprehensive inspection “based on the prior violation history of the place of employment. ”No longer would an employer be exempt from multiple comprehensive inspections in a three-year period.

Ultimately, SB 592 would result in an across-the-board increase in the amount of penalties that can be assessed by Oregon OSHA. It would also subject employers to additional comprehensive inspections where previously they might have been exempt. Notably, Oregon OSHA has not yet taken a position on SB 592, and it is unclear whether the agency would have sufficient resources to conduct the additional required comprehensive inspections as well as continue its present level of enforcement efforts.

SB 592 now heads to the House and, if passed, would need to be signed by the governor before taking effect. As currently drafted, SB 592 would be effective on passage.

This column is intended to provide readers with general information and not legal advice. Consult professional counsel for help regarding specific situations.

Column first appeared in the Oregon Daily Journal of Commerce on March 17, 2023

 

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