March 12, 2003

MEMORANDUM FOR:

REGIONAL ADMINISTRATORS

FROM:

JOHN L. HENSHAW

SUBJECT:

Enhanced Enforcement Policy for Employers Who Are Indifferent to their Obligations Under the OSHAct.

The Occupational Safety and Health Administration has long been aware of the problem of "recalcitrant employers": those who, despite OSHA's enforcement and outreach efforts, repeatedly flout their OSHAct obligations, placing their employees at risk.

This memorandum announces an enhancement to our current enforcement practices to address this issue. The Enhanced Enforcement Policy includes:

1. Follow-up Inspections for High Gravity Citation Cases;
2. Targeted inspections for other establishments of employers who have High Gravity Citation Cases;
3. Increased public awareness of OSHA enforcement;
4. Enhanced Settlement provisions; and
5. Federal Court enforcement under Section 11(b) of the OSHAct.

The focus is on employers' establishments that have been the subject of a High Gravity Citation Case: an enforcement case that has resulted in an OSHA citation with:

• high gravity willful violations; or
• multiple high gravity serious violations; or
• high gravity repeat violations at the originating establishment; or
• failure-to-abate notices; or
• a serious, willful, or repeat violation related to a fatality.
   

Below is a brief description of the elements of this policy. Additional formal guidance for implementation will be forthcoming in the near future.

1. Follow-Up Inspections. The Agency's overall policy and procedures for follow-up inspections is found in the [Field Operations Manual, OSHA Instruction CPL 02-00-148]. OSHA has found that, for most employers, "on-site" abatement verification inspections at cited establishments are generally not an effective use of its resources. Instead, under 29 CFR 1903.19, OSHA requires employers to submit documentation that abatement has been achieved. Only if the documentation is not submitted or is inadequate is an on-site inspection initiated.
   
   Enhanced Enforcement Policy:
   • OSHA will normally conduct follow-up on-site inspections at all establishments that were the subject of a High Gravity Citation Case. The follow-up inspection will assess whether the employer is committing similar violations, as well as whether the cited violation(s) were abated.
   • OSHA Area Directors may also conduct follow-up inspections at other sites to verify abatement of cited violations where there is reason to suspect abatement may not have occurred.
   • Before conducting a follow-up inspection, the Area Director must receive the concurrence of the Regional Administrator.
      
2. Programmed Inspections. "Programmed" inspections are scheduled based upon objective or neutral selection criteria. Establishments are selected according to national or local scheduling plans for safety and health (for example, Site Specific Targeting Program [SST], national emphasis programs or local emphasis programs). Where an establishment is a corporate subsidiary or affiliate, we do not currently record the name of the overall corporate entity. We also do not track injury and illness rates or violation history for the corporate employer as a whole.
   
   Enhanced Enforcement Policy:
   • For all establishments that were the subject of a High Gravity Citation Case.
      
     1. SST. Other establishments of the same overall corporate employer that are included on the current SST inspection list (both primary and secondary targeting lists) will be prioritized for a comprehensive inspection, after the citations have become final orders. The SST directive will be modified to include instructions for this prioritized list.
     2. Non-SST. OSHA will develop a separate list of all other establishments operated by the overall corporate employer, using information obtained during the inspection or other available data sources (e.g., Dun & Bradstreet). OSHA will develop a plan for inspecting other establishments as appropriate based upon information developed in the initial inspection. Additional formal guidance on this aspect of the policy will be forthcoming via memorandum or directive.
         
   • OSHA will ensure that the name of the overall corporate employer is included and searchable in OSHA's IMIS system. Instructions for obtaining this information and coding in IMIS will be forthcoming in the near future.
      
3. Enhanced Public Awareness. OSHA at times issues local and national press releases on enforcement actions. We do not inform corporate headquarters about these actions.
   
   Enhanced Enforcement Policy:
   • For all establishments that are the subject of a High Gravity Citation Case, a copy of the citation and notification of penalty will be mailed to the employer's National headquarters.
   • A new "Enforcement" section of OSHA's public web site will provide current information on enforcement programs and emphases, with relevant links.
      
4. Settlements. Most settlement agreements require the employer to abate the violation(s) and pay a penalty. In some settlements, however, particularly those in egregious cases and other significant enforcement actions, OSHA has insisted that employers take steps to address systemic compliance problems or to provide OSHA with information that will enable it to take follow-up action.
   
   Enhanced Enforcement Policy:
   In coordination with the Office of the Solicitor, OSHA will make greater use of settlement provisions designed to ensure future compliance. For all establishments that are the subject of a High Gravity Citation Case and who are seeking a settlement with the agency, we will consider including some or all of the following:
    
   • Requiring the employer to hire a consultant to develop a process to change the safety and health culture in the facility,
   • Applying the agreement corporate-wide,
   • In construction (and where appropriate, in general industry), use settlement agreements to obtain from employers a list of other job sites,
   • Requiring the employer to submit to OSHA its Log of Injuries and Illnesses on a quarterly basis, and consent to OSHA conducting an inspection based on the report, or
   • Obtaining employer consent to entry of a court enforcement order under Section 11(b) of the Act (see also the Henshaw/Scalia memo of September 18, 2002).
      
   Additional detailed guidance on implementation of this aspect of the policy will be provided as needed, by OSHA and SOL.
    
5. Section 11(b) Summary Enforcement Orders. An employer's obligation to abate a cited violation arises when there is a final order of the Review Commission upholding the citation. Section 11(b) of the Act authorizes OSHA to obtain court orders enforcing final Commission orders. Employers who violate such court orders can be found in contempt of court. The Henshaw/Scalia memo of September 18, 2002 encourages more frequent use of Section 11(b), sets forth criteria for seeking 11(b) orders, and establishes procedures for OSHA and SOL to follow in 11(b) cases.
   
   Enhanced Enforcement Policy:
   For citations meeting the criteria in the Hen shaw/Alia memorandum, apply for Federal court of appeals orders summarily enforcing the citations under Section 11(b) of the Act. This would include citations that have been settled or have otherwise become final Commission orders. To make this tool fully effective, OSHA will draft citations in language that makes the employer's future compliance obligations clear. If necessary, OSHA will seek contempt of court sanctions to coerce compliance.
    

Additional detailed guidance on implementation of this aspect of the policy will be provided as needed, by OSHA and SOL.

[Corrected 1/21/2009]