A bill seeking to amend the Occupational Safety and Health (OSH) Act by expanding its coverage, increasing whistleblower protections, and enhancing employer penalties for violations was reintroduced last week. Drafted by Rep. Lynn Woolsey (D-Calif) and co-sponsored by 16 others, the Protecting America’s Workers Act (PAWA) (H.R. 2067) had been introduced in both the 109th and 110th Congresses without success. President Obama had been a co-sponsor of a previous version. The most recent version of PAWA contains even stiffer penalties than those proposed in the earlier versions. Recent workplace safety violations have focused attention on PAWA, so this bill could have more success this session. In fact, Labor Secretary Hilda Solis has recently stated that enforcing worker safety and health regulations would be one of her top priorities.

In essence, PAWA would amend several provisions of the OSH Act as it relates to government and private employers. Notably, PAWA would increase the civil penalties under the OSH Act. For example, the minimum civil penalty for willful violations would increase from $5,000 to $8,000, and the maximum penalty would increase from $70,000 to $120,000. For serious violations, the maximum penalty is increased from $7,000 to $12,000. The legislation would also create a new penalty structure that would range from a minimum of $50,000 ($25,000 for small employers) to a maximum of $250,000 for a worker’s death caused by a willful violation. A death caused by a serious violation would result in a penalty ranging from $20,000 ($10,000 for small employers) to $50,000. In addition, PAWA would remove the requirement that a workplace death must occur before criminal penalties can attach, as well as providing for felony charges as a result of an employer’s repeated and willful violations which result in a worker’s death or serious injury. Criminal penalties would increase from a minimum of six months in prison to 10 years for a first offense and from a maximum of one year to a maximum of 20 years for repeat offenses. If a willful violation causes serious bodily injury but does not cause death, criminal penalties may include imprisonment for up to 5 years for a first offense, and 10 years for a repeat violation.

In addition, according to a press release issued by co-sponsor and Chairman of the House Committee on Education and Labor George Miller (D-Calif), PAWA would also accomplish the following:

• Expand OSH coverage to airline and railroad employees, as well as Department of Energy contractors
• Require OSHA to investigate all cases of death and serious injuries (i.e. incidents that result in the hospitalization of 2 or more employees)
• Improve whistleblower protections
• Create regulations that give workers the right to refuse to do hazardous work
• Clarify that employees cannot be discriminated against for reporting injuries, illnesses or unsafe conditions, and bring the procedures for investigating and adjudicating discrimination complaints into line with other safety and health and whistleblower laws
• Provide workers and employee representatives the right to contest OSHA’s failure to issue citations, classification of its citations, and proposed penalties.
• Give injured workers, their families and families of workers who died in work-related incidents the right to meet with investigators, receive copies of citations, and to have an opportunity to make a statement before any settlement negotiations
• Clarify that the time spent by an employee accompanying an OSHA inspector during an investigation is considered time worked, for which a worker must be compensated
• Prohibit OSHA from designating a citation as an “unclassified citation” where an employer can avoid the potential consequences of a “willful” violation, the most serious violation
• Allow any worker or their representative to object to a modification or withdrawal of a citation, and entitle them to a hearing before the Occupational Safety and Health Review Commission

PAWA has been referred to the House Committee on Education and Labor. Many employers are already facing increased scrutiny under the new Administration, and passage of the PAWA could have a significant effect on their operations. Our governmental affairs team will continue to keep you updated.