PRINTING United Alliance filed comments opposing proposed changes by Oregon OSHA to define “reasonable diligence” and “unpreventable employee misconduct.” Included were comments expressed opposition to their proposed expansion of their authority to impose maximum penalties for workplace violations. The proposed changes were triggered as Oregon OSHA had lost several court cases regarding their interpretation of existing regulations. The proposed additions to the rules would make it very difficult for employers in Oregon to contest citations for alleged violations of OSHA regulations.
Oregon law says that for an employer to be liable for a serious violation, Oregon OSHA must prove that the employer knew, or with the exercise or reasonable diligence could have known, of the violation. It is a fault-based system. The proposed definition of “reasonable diligence” changes the fault-based system to a strict liability system. The new rule says that to be reasonably diligent an Oregon employer must prove that it:
- Anticipated all hazards that could occur in the workplace; and then
- Eliminated all hazards or violations in the workplace.
The proposed change would allow Oregon OSHA to penalize responsible employers who are making reasonable attempts to identify hazards and prevent injuries in the workplace., and it Additionally, the proposed changes would make it easier for Oregon OSHA to win a contested case.
For unpreventable employee misconduct, the current requirements state that if an employer trains an employee on how to safely perform a task and provides all of the proper equipment and the trained employee intentionally disregards the training and does something unsafe, the employer can claim misconduct on the part of the employee. Under the proposed rule change, an employer is prevented from using this defense unless they can prove that they have developed and implemented measures that identify any and all instances of an employee not following the employer’s procedures. Further the employer would need to demonstrate that they have taken “effective corrective action” whenever an employee was caught disregarding the training. This definitional change would eliminate employee misconduct as an employer cannot possibly identify all instances of an employee not following the rules.
Additional proposed language would grant Oregon OSHA’s Administrator unfettered discretion to impose huge penalties. The proposal would empower the Administrator to impose penalties up to $13,538 for any “serious” violation and up to $135,382 for any “willful” violation. Oregon OSHA further proposes to increase the maximum penalty for any “repeat” violation up to $135,382, which the Administrator would have the unfettered discretion to impose “after considering the facts.” This deviates from the current tiered scheme in place now under which the penalty amounts increase with each repeated violation and impose a maximum penalty of up to $135,382 for any “repeat violation.” This level of discretion is not appropriate and creates an unacceptable level of unpredictability for Oregon employers.
PRINTING United Alliance Regulatory Affairs team continues to track this issue. For more information or if you have questions, please contact us at firstname.lastname@example.org.