Flash Report: Dramatic Increases in Fed, Cal/OSHA Penalties?

Sneaked into the congressional Democrats’ $3.5 trillion reconciliation bill last weekend – shortly before the Budget Committee approved it – are ten-fold increases in Fed-OSHA penalties for serious, willful, and repeat violations. The new penalties go from a minimum of $50,000 and can reach as high as $700,000 per violation. While aimed at organizations that violate COVID mandates, they will apply to all violations.

Media reports have characterized these dramatic increases as a mechanism to enforce President Joe Biden’s COVID vaccine mandates. But the mainstream media is missing the point: Nothing in the proposed language limits penalties to a vaccine.

Biden has directed Fed-OSHA to draft regulatory language requiring employers of 100 or more to require their entire workforce to be vaccinated or discharged. He has further issued an executive order requiring all federal agencies and contractors to require vaccination. Many federal employees – including in the border patrol, military, and across the whole plethora of federal employees are refusing the vaccine and will be terminated. Government employees in state and local positions, including police, fire, and hospital workers, also refuse.

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The big question in California is if the new penalties are approved, will Cal/OSHA have to follow? The answer is yes.

“Cal/OSHA’s penalty structure must be at least equivalent to Fed OSHA’s,” says Department of Industrial Relations spokesman Frank Polizzi.

For instance, when Congress increased penalties in 2017 based on the Consumer Price Index to adjust for inflation, DIR followed suit. Consequently, the maximum Cal/OSHA penalties for willful or repeat violations jumped from $70,000 to the current $134,334.

The proposed new federal penalty structure raises the stakes much higher. The Occupational Safety and Health Act provisions for willful or repeat violations would increase from a minimum of $5,000 to $50,000 per violation and the maximum from $70,000 to $700,000.

Federal serious or failure-to-abate violations would increase from $7,000 to $70,000. The Cal/OSHA penalties for serious violations are a maximum of $25,000. Failure-to-abate penalties include the recission of abatement credits and an additional daily penalty of up to $15,000.

If the enormous increases ultimately pass and ultimately are adopted, “That will raise the stakes tremendously,” says employer attorney Kevin Bland of Ogletree Deakins.