May 4, 2001

The Honorable Joseph Pitts
P.O. Box 837
Unionville, Pennsylvania 19375-0837

Dear Congressman Pitts:

Thank you for your April 2, 2001 letter and the letter dated August 17, 2000 from Mr. Bernhardt W. Langer to the Occupational Safety and Health Administration's (OSHA's), Directorate for Policy. Mr. Langer offered a suggestion for amending the OSHA Penalty Structure.

Mr. Langer's Proposed Change: If after OSHA inspects a facility and issues a citation for deficiencies, the company corrects the deficiency and provides appropriate documentation, and the company is accepted as being in compliance with the standard, the penalty would be forgiven.

OSHA's Response: Because OSHA does not have the resources to inspect every workplace in America, Congress authorized OSHA to issue penalties, if appropriate, when hazards are first discovered. Under the Occupational Safety and Health Act of 1970 (OSH Act) employers are obligated to abate hazards before an OSHA inspection occurs. The civil penalty is intended to provide an incentive toward voluntary hazard correction. Mr. Langer's proposed change could discourage voluntary compliance.

Monetary penalties are used to encourage employers to immediately start addressing workplace hazards, and comply with safety and health standard requirements. Also, based on current staffing and the size of the American business community, OSHA would need approximately 60-75 years to inspect each and every employer covered by the OSH Act. OSHA wants employers to be proactive and not wait for an inspection to begin implementing safety and health standards in the workplace.

Mr. Langer was also concerned about OSHA's effects on small businesses. Please be aware that while OSHA does not have a single definition for "small business," our penalty calculation procedures give consideration for any employer with 250 or fewer employees. In accordance with Section 17 of the OSH Act, OSHA takes into account the employer's size, good faith, previous history of violations, and the gravity of the violation when proposing penalties. Normally, a reduction of 60 percent may be applied to penalties if the employer has 25 employees or fewer; 40 percent if the employer has 26-100 employees; and 20 percent if the employer has 101-250 employees. Although no reduction for size is applied if an employer has more than 250 employees, the employer may still be accorded up to a 10 percent reduction for a lack of previous violations, and a 25 percent reduction for "good faith" which mainly depends upon the effectiveness of the employer's safety and health program. When these three factors are combined, it is possible for the smallest employers to receive up to a 95% reduction in the initial monetary penalty.

OSHA realizes that small businesses may not have the resources or expertise to recognize some safety hazards. In order to help these entities, OSHA offers a free Consultation Service which is completely separate from the enforcement program. The Consultation Service is funded by federal OSHA, but delivered by state governments to those employers with less than 250 employees at fixed sites and no more than 500 nationwide. Employers can find out about potential hazards at their workplaces, improve their safety and health management systems, and may even qualify for an exemption from routine OSHA inspections. No citations or penalties are proposed as a result of the consultation visit.

I have enclosed a publication (OSHA 3047), that explains the consultation program in greater detail for your review, and a copy of OSHA Instruction CPL 2-0.121 that describes the Agency's policies and procedures for providing assistance to smaller employers and their employees. In addition, I have enclosed one of our newest publications, "Q's & A's for Small Business Employers." [PDF]  This document answers questions that concern small business owners and contains information on other help OSHA provides to small businesses.

[Correction 7/14/2004. The OSHA publication 3047 has been withdrawn. Current information on the Consultation Service is available on the "Consultation: Free On-Site Safety and Health Services" web page. Additional information on Small Business assistance is also available on the Small Business web page.]

Thank you for your interest in occupational safety and health. We hope you find this information helpful. If you have any further questions, please feel free to contact the Office of General Industry Compliance Assistance at (202) 693-1850.

Sincerely,


R. Davis Layne
Acting Assistant Secretary

Enclosures

cc: Washington, DC Office