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D. Related Classifications.
1. Failure to
Correct. Section
5-810(a)(1)(ii) of the Act provides criteria for assessing civil penalties
for failure to correct a violation. A penalty of not more than $7,000 may
be assessed for each day the violation continues past the final abatement
date.
a. Application.
A Notification of Failure to Correct Alleged Violation shall be issued in
cases where violations have not been corrected as required.
(1)
Failure
to correct penalties shall be applied when an employer has
not corrected a violation which was cited previously, after
the previous citation has become a final order of the
Commissioner.
(2)
A
good faith but unsuccessful effort to correct the violation
shall be taken into consideration when determining the
appropriate penalty amount as indicated below.
b. No Employer
Contest. If a
timely notice of contest has not been filed, the citation and proposed
penalties shall be deemed to be a final order of the Commissioner upon the
expiration of the contest period. Penalties for failure to correct shall
be applied where abatement has not been accomplished.
c. Employer
Contests Alleged Violation(s).
If an employer contests one or more of the alleged violations, the period
for abatement does not begin to run, as to those items contested, until
the day following the entry of the final order by the Commissioner
affirming the citation.
(1)
If
the employer contests only the amount of the proposed
penalty, the employer must correct the alleged violation
within the prescribed abatement period.
(2)
If
an employer in good faith files a fully documented request
for an extension of abatement time, a Failure to Correct
notice shall not be issued for the item(s), if under
contestment, until a final order affirming the item(s) has
been entered and the new abatement period has passed, and
the employer still has failed to correct the violation.
d. Calculation
of Additional Penalties.
A penalty for uncorrected violations shall be calculated for failure to
correct a serious or other-than-serious violation on the basis of the
facts noted during re-inspection. Except as provided in "Partial
Abatement", below, this recalculated penalty shall not reflect an
adjustment for good faith or be less than that proposed for the item when
originally cited.
(1)
In
those instances where no penalty was proposed initially, an
appropriate penalty shall be determined after consulting
with the MOSH Supervisor. In no case shall the penalty be
less than $600.
(2)
The
proposed daily penalty shall be multiplied by the number of
calendar days that the violation continued uncorrected. The
number of days uncorrected will be counted from the day
following the abatement date specified in the citation or
the final order if contested. It will include all calendar
days between that date and the date of re-inspection,
excluding the date of re-inspection. Normally the total
proposed penalty for failure to correct a particular
violation shall not exceed 10 times the amount of the daily
proposed penalty.
(3)
In
unusual circumstances, such as where the gravity of the
violation is especially high or the employer has willfully
failed to correct the violation, higher penalties shall be
proposed. In such situations the proposed penalty and
factors involved shall be approved by the Assistant
Commissioner/Authorized Representative, who may apply a
penalty for each day uncorrected.
e. Partial
Abatement. When a
citation has been corrected only partially, the proposed daily penalty
shall take this fact into consideration.
(1)
When
a violation consists of a number of instances and the
follow-up inspection reveals that only some instances of the
violation have been corrected, the additional proposed daily
penalty shall take into consideration the extent to which
the violation has been corrected. The proposed daily penalty
(calculated as outlined above, without regard to any partial
abatement) may be reduced proportionately.
(2)
In
multi-step correction items, generally only the failure to
comply with substantive (rather than procedural)
requirements shall incur a full failure to correct penalty.
On those rare occasions when the MOSH Supervisor
recommends the issuance of a Failure to Correct Notice for
failure to comply with procedural requirements, the
calculation of the proposed daily penalty shall consider the
extent to which a violation has been substantially corrected
with the proposed daily penalty (calculated as outlined
above, without regard to any partial abatement) reduced
accordingly.
f. Good Faith
Effort to Correct.
When the CO/IH believes that the employer has made good faith efforts to
correct a violation and had good reason to believe that it was fully
corrected, the Assistant Commissioner/Authorized Representative may reduce
or eliminate the proposed daily penalty that otherwise would be justified.
In this situation, the CO/IH shall prepare a narrative recommendation to
the Assistant Commissioner/Authorized Representative and attach the
narrative to the Citation/Penalty Worksheet.
2. Repeated
Violations. Section
5-810(a)(2) of the Act provides that for a repeated violation of the Act,
an employer may be assessed a civil penalty of not more than $70,000 for
each violation. A violation of any provision of the Act, including the
"general duty clause" and the posting and reporting
requirements, or a violation of any section of a rule, regulation,
standard or order promulgated pursuant to the Act, may be cited as a
"repeated" violation where, upon re-inspection, there is found
another violation of a provision or section cited previously.
a. Gravity and
Penalty Factors. A
penalty shall be calculated for repeated violations based on facts noted
during the current inspection. Each violation shall be classified as
serious or other-than-serious. No good faith adjustment shall be applied
for any repeated violation.
b. Time
Limitations. There
are no statutory limitations on the length of time that a citation may
serve as the basis for a repeated violation. In order to limit an
employer's liability, the maximum time period within which a violation may
be classified as repeated shall be, for a first repeated offense, 3 years
from the date the earlier citation became a final order, or 3 years from
the final abatement date of the prior citation, whichever is later. The
"window of view" shall increase to as much as 5 years when
additional repeat offenses occur.
c. Penalty
Increase Factors.
As required by regulation, once the penalty is determined, it shall be
doubled if it is a first repeated violation and quadrupled if the
violation has been cited as repeated once before, within 36 months. A
third repetition of a violation, cited as repeated twice within the
preceding 48 months, shall cause the penalty to be multiplied by 6. For
any further repetition within 5 years, the penalty shall be multiplied by
10. The following table may be used as a guide for applying this
procedure:
| Citations* |
Issued as Repeated |
Multiplier |
| 1 |
0 |
0 |
| 2 |
1 |
2 |
| 3 |
2 |
4 |
| 4 |
3 |
6 |
| 5 |
4 |
10 |
*
Previous citations must have become a final order (citations
which were not contested or, if contested, AFFIRMED)
3. Willful
Violations. Section
5-810(a)(2) of the Act provides that, for a willful violation of the Act,
an employer may be assessed a civil penalty of not more than $70,000 for
each violation. Willful violations differ from repeated violations in that
a repeated violation may result from an inadvertent, accidental or
ordinarily negligent act. A repeated violation exists only where there has
been a prior violation. A willful violation need not be a violation for
which the employer has been cited previously. A willful violation is one
where either: (a) the employer committed an intentional and knowing
violation, or (b) although the employer did not intentionally violate the
law, the employer acted with indifference to its obligation, or (c) the
violation was indicative of careless disregard of employer
responsibilities.
a. Gravity and
Penalty Factors.
Each violation shall be classified as serious or other-than-serious. In
considering the element of good faith for alleged willful violations, a
good faith adjustment factor of zero shall be applied. After determining
the gravity of the violation, a penalty shall be determined based on facts
noted during the inspection. The penalty is multiplied by 10 to arrive at
the proposed penalty.
b. Mixed
Violation. Repeated
violations for which there is evidence of willfulness shall be cited as
willful. In such cases, the Assistant Commissioner/Authorized
Representative will be consulted.
4. Violation
of Regulatory Requirements.
Section 5-809(b) of the Act provides that an employer who violates a
posting requirement imposed under the Act shall be assessed a civil
penalty. The Act does not address civil penalties for violations of other
specific regulatory requirements. Most such violations are considered
other-than-serious.
a. General
Application. The
procedures that follow shall be used in determining penalties for
violations of the regulatory requirements. With
respect to penalty adjustment factors for alleged violations of regulatory
requirements, in considering the elements of good faith, employer size,
and employer history, an adjustment factor of zero shall be applied to
each element.
b. Posting
Requirements.
Penalties for violation of posting requirements shall be proposed as
follows:
(1)
MOSH
Notice.
If an employer has not displayed (posted) the notice
furnished by the Maryland Occupational Safety and Health
Agency or the Federal Occupational Safety and Health
Administration, as prescribed by regulation, an
other-than-serious citation normally shall be issued. The
penalty for this alleged violation shall be $175.
(2)
Annual
Summary.
If an employer fails to post the summary portion of the
Injury and Illness Log during the month of February,
as required by regulation, an other-than-serious citation
shall be issued with a proposed penalty of $350.
(3)
Citation.
If an employer received a citation but did not post it as
required by regulation, a penalty of $700 shall be proposed
if the alleged violation is not serious. If a citation for a
serious violation is not posted, a penalty of $1,400 shall
be proposed.
c. Reporting
and Recordkeeping Requirements.
Section 5-810 of the Act provides that violations of the recordkeeping and
reporting requirements may be assessed civil penalties of up to $7,000 for
each violation.
(1)
MOSH
Forms.
If an employer does not maintain a "Log and Summary of
Occupational Injuries and Illnesses" and
"Supplementary Record" or equivalent, as required
by regulation, an other-than-serious citation shall be
issued. If the required form is maintained but injury or
illness cases are not recorded, a penalty of $350 shall be
proposed for each case not recorded, not to exceed the
statutory maximum of $7,000. A penalty of $350 shall be
proposed for each MOSH form not maintained. Where no
recordable injuries or illnesses have occurred, the forms
will be considered to be maintained, even though no entries
appear in them.
(2) Reporting.
(a)
Employers
are required to report to the Commissioner of Labor and
Industry, either orally or in writing, within 8 hours,
any employment accident which is fatal to one or more
employees or which results in the hospitalization of 3
or more employees. A serious citation shall be issued
for failure to report such an occurrence. If more than
six months have elapsed from the required reporting
time, a maximum penalty of $7,000 shall be proposed. If
less than six months have elapsed from the required
reporting time, a penalty of $3,500 shall be proposed.
(b)
An
employer who is a subcontractor shall notify the
Commissioner of the start of any work to be performed by
the subcontractor in a confined space, as defined in
Section 5-602(c) of the Act. Within 24 hours of the oral
notification, the employer shall submit written
notification to the Commissioner. An other-than-serious
citation shall be issued and a penalty of $1,400 shall
be proposed for failure to report such work.
(c)
An
employer who has failed to submit certification of
abatement as required under COMAR 09.12.20.21 shall be
issued an other-than-serious citation with a proposed
penalty of $350.
d. Access to
Records. If, upon
request, an employer fails to provide records required by regulation to be
made available for inspection and copying by an authorized representative
of the Commissioner of Labor and Industry or by any employee, former
employee, or authorized representative of employees, a citation for
violation of the appropriate regulatory requirements shall normally be
issued. A penalty of $350 shall be proposed for each form not made
available. Thus, if the Injury and Illness Log for the three
preceding years is not made available, a penalty of $1,050 shall be
proposed. If the employer is to be cited for failure to maintain these
records, no citation shall be issued for failure to provide access.
E. Criminal Penalties.
1. The Act
provides for criminal penalties in the following cases:
a. Willful
violations causing death.
b. Giving
unauthorized advance notice.
c. Giving
false information.
2. Criminal
penalties are imposed by the courts and not by the Maryland Occupational
Safety and Health Agency. All cases of suspected criminal violation shall
be referred to the Assistant Commissioner/Authorized Representative.
PENALTY CALCULATION CONSIDERATIONS
Gravity of Violation
| 21.
Probability Assessment - When Samples are Not Taken
|
|
|
|
|
| 21.a
Number
of workers exposed
|
______ |
|
Each worker
up to 10 |
1 - 10 |
|
|
|
| 21.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 |
| |
|
|
| 21.c Employee
proximity |
______ |
|
Fringe of
danger zone |
1 - 3 |
|
Near danger
zone |
4 - 6 |
|
At point of
danger |
7 - 10 |
| |
|
|
| 21.d Stress |
______ |
|
Low
stress/good conditions |
1 - 3 |
|
Medium
stress/fair conditions |
4 - 6 |
|
High
stress/poor conditions |
7 - 10 |
|
|
|
| 21.e SUBTOTAL
(21.a + 21.b + 21.c + 21.d) |
______ |
|
|
|
| 21.f PROBABILITY
(21.e / 4 minus fraction) |
______ |
|
|
|
| 21.g
Severity
Factor and Injury/Illness |
_______ |
|
Category I:
Other-than-serious violation |
1 |
|
Category
II: Injury/illness not resulting in hospitalization or temporary,
reversible illness requiring minor supportive treatment |
2 -4 |
|
Category
III: Injury/illness resulting in hospitalization or temporary, reversible
illness with a variable but limited period of disability |
5 -7 |
|
Category
IV: Injury involving permanent disability or chronic
irreversible
illness or death |
8 -10 |
|
|
|
| 21.h
TOTAL
(21.f + 21.g) |
______ |
|
|
|
| 21.i GRAVITY
RATING (21.h / 2 less fraction) |
_______ |
|
|
|
| 25.
Probability Assessment - When Samples are Taken
|
|
|
|
|
| 25.a
Number
of workers exposed
|
______ |
|
Each worker
up to 10 |
1 - 10 |
|
|
|
| 25.b Frequency
of exposure |
______ |
|
1 to 9
hours per week |
1 - 3 |
|
Over 8
hours per week but no continuous daily exposure |
4 - 8 |
|
Continuous
daily exposure |
97 - 10 |
| |
|
|
| 25.c
Use of appropriate personal protective equipment |
______ |
|
PPE used
by all exposed employees and a good program is in effect |
1 - 2 |
|
PPE used
by all exposed employees but minor deficiencies in the program |
3 - 6 |
|
PPE not
used by any exposed employees |
7 - 10 |
| |
|
|
| 25.d
Evaluation of Medical Surveillance Program |
______ |
|
Program
effectively protects employee |
1 - 2 |
|
Program
partially protects employee |
3 - 6 |
|
No
medical surveillance program is in effect or the program does not
protect employee |
7 - 10 |
|
*See
Page VI-4 |
|
|
|
|
| 25.e SUBTOTAL
(25.a + 25.b + 25.c + 25.d) |
______ |
|
|
|
| 25.f PROBABILITY
(25.e / 4 minus fraction) |
______ |
|
|
|
| 25.g
Severity
Factor and Injury/Illness |
_______ |
|
Category I:
Other-than-serious violation |
1 |
|
Category
II: Injury/illness not resulting in hospitalization or temporary,
reversible illness requiring minor supportive treatment |
2 -4 |
|
Category
III: Injury/illness resulting in hospitalization or temporary, reversible
illness with a variable but limited period of disability |
5 -7 |
|
Category
IV: Injury involving permanent disability or chronic
irreversible
illness or death |
8 -10 |
|
|
|
| 25.h
TOTAL (25.f + 25.g) |
______ |
|
|
|
| 25.i GRAVITY
RATING (25.h / 2 less fraction) |
_______ |
|
|
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