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A. Civil Penalties.
1. Type of
Violation as a Factor.
In proposing civil penalties for violations, a distinction is made between
serious violations and all other violations. There is no statutory
requirement that a penalty be proposed when the violation is not serious;
but a penalty must be proposed when the violation is serious. The maximum
penalty that may be proposed for a serious or an other-than-serious
violation is $7,000. In the case of willful or repeated violations, a
civil penalty of up to $70,000 may be proposed. The minimum penalty issued
for a willful violation shall not be less than $5,000. For other specific
violations of the MOSH Act (the Act) civil penalties of up to $7,000 may
be proposed. Penalties for failure to correct a violation may be up to
$7,000 for each calendar day that the violation continues beyond the
stated abatement date.
2. Serious and
Other-than-Serious Violations.
Sections 5-809 and 5-810 of the Act provide that an employer who receives
a citation for an alleged serious violation of the Act shall be
assessed a civil penalty of up to $7,000 for each violation. Those
sections further provide that, when the violation is specifically
determined not to be of a serious nature, a proposed civil penalty of up
to $7,000 may be assessed for each violation. When a violation of a
posting requirement is cited, a civil penalty of up to $7,000 shall
be assessed.
3. Penalty
Factors. Section
5-810(b) of the Act provides that penalties shall be assessed on the basis
of nine factors:
a. The size of
the business of the employer against whom the penalty is to be assessed;
b. The gravity
of the violation for which the penalty is to be assessed;
c. The good
faith of the employer;
d. The history
of violations by the employer;
e. The injury
and illness experience of the employer;
f. The
existence and quality of a safety and training program;
g. The actual
harm to human health including injury or illness;
h. The extent
to which the current violation is part of a recurrent pattern of the same
or similar type of violation; and
i. The extent
to which the existence of the violation was known to the employer but
remained not corrected.
B. Penalty Calculation Considerations.
The gravity of the violation is the primary factor in determining
penalty amounts. It shall be the basis for calculating the basic
penalty for all violations. To determine the gravity of a violation,
the following two factors shall be considered:
o
The severity of the injury or illness which could
result from the alleged violation.
o
The probability that an injury or illness could occur as
a result of the alleged violation.
1. Severity
Factor. The
classification of the alleged violation as serious or other-than-serious,
in accordance with the instructions in Chapter IV, is based on the
severity of the injury or illness which could result from the violation.
This classification constitutes the first step in determining the gravity
of the violation. The most serious type of injury or illness which is
reasonably predictable as a result of the type of accident or health
hazard exposure shall be assigned a severity factor in accordance with the
following:
a. Category I:
Other-than-serious violations. Although such violations reflect conditions
which have a direct and immediate relationship to the safety and health of
employees, the injury or illness most likely to result probably would not
cause death or serious physical harm.
b. Category II:
Injuries or temporary, reversible illnesses not resulting in
hospitalization and requiring only minor supportive treatment.
c. Category
III: Injuries or
temporary, reversible illnesses resulting in hospitalization or a variable
but limited period of disability.
d. Category IV:
Death from injury or illness, injuries involving permanent disability or
chronic, irreversible illnesses.
NOTE:
Categories II, III, and IV apply to serious violations. The
penalty for other-than-serious violations shall be
calculated using 1 as the severity factor. For the purpose
of penalty calculation, hospitalization means admission to a
medical facility for overnight definitive treatment.
2. Probability
Assessment: WHEN SAMPLES ARE NOT TAKEN.
The probability of the occurrence of an accident has no role in
determining the classification of a violation. Probability does affect the
amount of the penalty to be proposed, and shall be estimated by
considering four probability factors to which an appropriate numerical
value shall be assigned in accordance with the relative contribution of
each, as follows:
| a. Number of workers exposed: |
|
Each worker
up to 10 |
1-10 |
| b.
Frequency of exposure: |
|
Any
exposure up to once a week |
1-3 |
|
More
than once a week up to daily exposure |
4-6 |
|
Continuous
daily exposure |
7-10 |
| c.
Employee proximity: |
|
Fringe
of danger zone |
1-3 |
|
Near
danger zone |
4-6 |
|
At the point of danger |
7-10 |
d. Working
conditions including environmental and other factors (e.g., speed of
operations, lighting, temperature, weather conditions, noise,
housekeeping, etc.) which may influence the likelihood of an accident
resulting in injury:
|
Low
stress/good conditions |
1-3 |
|
Medium
stress/fair conditions |
4-6 |
|
High
stress/poor conditions |
7-10 |
To
determine overall probability, the factors used must be averaged.
Total the points assigned for each factor and divide by four. Any
fractions shall be disregarded. The resulting number is called the
"probability quotient".
3. Probability
Assessment: WHEN SAMPLES ARE TAKEN.
To determine the probability of an illness, the CO/IH shall consider the
number of workers exposed, the duration of exposure, the use of personal
protective equipment and the results of the medical testing as noted
below:
| a. Number of workers exposed: |
|
Each worker
up to 10 |
1-10 |
| b.
Duration of exposure |
|
1 to 8
hours per week |
1-3 |
|
Over 8
hours per week but not continuous daily exposure |
4-8 |
|
Continuous
daily exposure |
9-10 |
| c.
Use of appropriate personal
protective equipment: |
|
Personal
protective equipment utilized by all exposed employees, |
1-2 |
|
and a
good program is in effect |
|
Personal
protective equipment utilized by some of the exposed |
3-6 |
|
employees
but with minor deficiencies in the program |
|
Personal
protective equipment not utilized by any of the exposed employees |
7-10 |
d. Evaluation of the medical
surveillance program: (If
there is no applicable surveillance program, this category shall not be
considered.)
|
The
medical surveillance program effectively protects the employee |
1-2 |
|
The
medical surveillance program partially protects the employee |
3-6 |
|
No
medical surveillance program is in effect or the medical |
7-10 |
|
program does
not protect the employee |
To
determine the overall probability the factors used must be averaged.
Total the number of points for each factor and divide by the number
of factors used. Any fractions shall be disregarded. This is the
"probability quotient."
4. Other
Factors. There are
other factors which may affect significantly the probability that the
hazard will produce an injury or illness. These factors also shall be
considered and documented:
a. Mitigating
circumstances such as specific safety or health instructions, effective
training programs, a comprehensive safety and health program, evidence of
correction underway, warning signs and labels or special procedures, or
mandatory administrative controls providing some, though not complete,
protection, shall be documented and considered in the final evaluation of
probability.
b. Similarly,
aggravating circumstances such as inappropriate or inadequate safety or
health instructions, inadequate training, a poor or nonexistent safety and
health program, or widespread hazardous conditions or faulty equipment
with little or no attempt
to control them, shall be documented and considered in the final
evaluation of probability.
c. When strict
adherence to the probability assessment procedures would result in an
unreasonably high or low gravity rating, the MOSH Supervisor shall
use professional judgment to adjust the probability quotient
appropriately. Such decisions shall be adequately documented in the case
file.
5. Gravity
Rate. The gravity
rate of each violation is determined by averaging the severity factor and
the probability quotient. The severity factor and probability quotient are
added together and are divided by two. Any fractions shall be disregarded.
This results in the gravity rating for the alleged violation.
6. Gravity
Based Penalty. To
determine the gravity based penalty, take the gravity rating and multiply
by $500. This is the basis of the proposed penalty, prior to any
adjustments.
C. Penalty Adjustment Factors.
1. Good Faith
Adjustment.
Evidence of the employer's "good faith" is measured in terms of
five specific criteria. To determine the good faith of the employer, the
following factors shall be considered in relation to the alleged
violation:
a. Safety and Health Program.
(1)
A
key indicator of an effective program will be the degree of
knowledge which employees have of potential site specific
safety and health hazards. This knowledge requires training
in hazard recognition (site familiarization) for skilled as
well as nonskilled occupations, based on the employee's
specific work environment and job related hazards. In
evaluating the safety and health program, the CO/IH shall
look for evidence of genuine and effective
safety and health efforts initiated prior to the inspection.
Such efforts normally will involve a structured (formalized)
program which has been set out in writing. In order for an
employer to receive a penalty adjustment for this element,
the program must be in writing and must be reviewed by the
CO/IH. A CO/IHs knowledge of the employer's written program,
gained by previous inspections/investigation or through
other investigative means, shall be acceptable and a new
review will not be required if the employer stipulates that
the program has not been modified and that management
continues its commitment to program implementation.
(2)
The
overall condition of the workplace as reflected by the
control or elimination of hazards shall be considered in
evaluating the safety and health program.
(3)
The CO/IH shall discuss the employer's safety and health program
during the inspection/investigation. It is essential that
the CO/IH determine management's commitment and the extent
of their involvement.
(4)
In
addition to the information provided by management, it will
be necessary to interview a sufficient number of employees
to determine the employees' role and involvement in the
program. Employee interviews will tend to support and
confirm management's safety and health posture. Where
possible, copies of supporting information shall be obtained
and made an official part of the case file.
(5)
The CO/IH shall review the safety and health program and
document in the case file the following program areas:
- Management
Commitment
- Employee
Involvement
- Hazard
Assessment
- Safety and
Health Rules and Work Procedures
- Safety and
Health Training
When
evaluating the employer's safety and health program, the CO/IH
must consider the establishment/site under inspection and
not the corporate-wide policy. Corporate policies may not be
effective or implemented at the site of inspection.
b. Abatement.
In evaluating the abatement factors influencing the good faith rating, the
CO/IH shall look at the speed and willingness with which the employer
initiates abatement action or mitigates exposure during the inspection.
Where the majority of the non-incidental apparent violations are abated,
the employer shall be given full consideration for this element.
c. Injuries
and Illnesses. In
evaluating the injury and illness factor for the good faith rating, the
records of the injury or illness are reviewed to determine the extent to
which the apparent hazards and alleged violations may have contributed to
any injury or illness. The CO/IH shall give full consideration for this
good faith element when no injuries or illnesses appear to be related to
the violations cited
d. Supervision.
In evaluating the supervision factor for the good faith rating, the CO/IH
shall look at the degree to which the employer and supervisors demonstrate
knowledge and concern about safety and health requirements and the degree
of concern relative to the apparent violation.
d. Knowledge
of Violation. The CO/IH shall determine the extent to which the employer or supervisors knew
of the violations and failed to take corrective action. If there are any
indications that the employer was aware of the existence of non-incidental
violations, the CO/IH shall provide narrative documentation in the case
file. In addition, the CO/IH shall ensure that the good faith adjustment
relative to this element is rated accordingly.
2. Good Faith
Rating. The good
faith rating of an employer is determined by considering the above five
factors, to which an appropriate numerical value shall be assigned in
accordance with the relative contribution of each, as indicated on the
appropriate form. The numerical value for each circled answer shall
be totaled to obtain the "good faith total". The numerical total
shall be applied to the following scale to determine the "good faith
adjustment".
| 0
- 5 |
25% |
| 6
- 10 |
15% |
| 11 - 20 |
5% |
| 21 - 40 |
0% |
3. History.
The evaluation of the employer's history is based on the employer's
experience which resulted in past violations under the Act. The numerical
value for the history rating shall be assigned in accordance with the
following:
a. Initial
inspection/no previous employer history/previous inspections in
compliance or only OTS violations cited 10%
b.
Previous
inspection not in compliance/serious hazards cited/cited more than
36 months prior to this inspection (issuance to closing) 5%
c. All other
scenarios of noncompliant activity 0%
4. Size.
In establishing the size rating, the CO/IH shall determine the size of an
employer on the basis of the number of persons employed. The CO/IH shall
consider all of the employer's establishments and all employees.
Information on the total number of employees generally can be obtained at
the inspected worksite. However, on occasion it may be necessary to obtain
or confirm the information from the employer's main establishment. The
numerical value for the size rating shall be assigned in accordance with
the following:
| Employees
|
Scale
|
| 1 - 25 |
60% |
| 26 - 100 |
40% |
| 101 - 250 |
20% |
| 251 or more |
0% |
5. Actual Harm.
In evaluating the apparent violation, the CO/IH shall determine if the
exposed employee(s) received any degree of actual harm. The actual harm
may be related to diminished health capacity or physical injury. If the
CO/IH determines the existence of actual harm to any employee, a penalty
of up to $2,000 shall be applied.
| Injury/Illness |
Actual
Harm |
| No
injury/illness |
$ 0 |
| Injury/illness
not resulting in hospitalization, or temporary reversible illness
requiring minor supportive treatment |
$ 500 |
| Injury/illness
resulting in hospitalization, or temporary reversible illness
with a variable but limited period of disability |
$ 1,000 |
| Injury
involving permanent disability, or chronic irreversible
illnesses |
$ 1,500 |
| Death
of one or more employees |
$ 2,000 |
For
the purpose of penalty calculation, hospitalization means admission
to a medical facility for overnight definitive treatment.
6. Egregious
Violations. When
evaluating a case which may be egregious, such as an alleged willful
violation, repeated violation, high gravity serious violation, or failure
to correct violation, consideration shall be given to applying the MOSH
"egregious penalty" procedure. When an alleged violation
indicates a blatant disregard for worker safety, the MOSH Supervisor shall
recommend to the Assistant Commissioner/Authorized Representative the
application of an additional penalty factor. The Assistant
Commissioner/Authorized Representative may independently apply this
additional penalty where circumstances suggest it is appropriate. The
additional penalty shall be calculated by multiplying the usual proposed
penalty (calculated on the citation penalty worksheet) by the number of
instances of the violation or number of persons exposed. This in effect
eliminates the normal grouping of violation instances; that is, violations
are cited on a violation-by-violation basis. When citations proposing such
additional penalties are issued the Assistant Commissioner/Authorized
Representative or MOSH Supervisor shall document in the case file the
reason for the additional penalty and shall clearly indicate the method
used to calculate it. The Assistant Commissioner/Authorized Representative
shall ensure that such penalties do not exceed their statutory maximum.
Continued
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