Deadline for Opposing Oregon OSHA’s Proposed Increase in Penalties and Changes to Eliminate Various Defenses is October 30, 2020

Oregon OSHA has proposed new and sweeping changes to its regulations.  These changes are designed to make it much easier for Oregon OSHA to uphold an alleged “serious” violation of the regulations.

Oregon OSHA has also proposed new regulations to give it discretion to substantially increase penalties, including the ability to impose penalties of up to $135,382 for mere paperwork violations such as failing to post summaries and logs.  For some violations, this means a 13,453% increase from the current regulations.

While Oregon OSHA says that the changes are just technical changes and clarifications, the reality is these changes will result in much larger penalties and substantially change the burden of proof that Oregon OSHA must meet to substantiate a violation.

Oregon employers need to let Oregon OSHA know that these rule changes are not necessary and should not be adopted.

You can prepare your own written comments and submit them to Oregon OSHA or we have prepared a draft comment letter for you to send to Oregon OSHA opposing the proposed changes. 

Summary of Proposed Amendments that Would Change Fault-Based System to Strict Liability

Oregon law says that to be guilty of a serious violation, an employer must either be aware of the violation or the violation must be something that with the exercise of “reasonable diligence” the employer could have known about.

Oregon OSHA proposes defining “reasonable diligence” in a way that would eliminate its obligation to prove that an alleged violation was something that could have been known to a reasonable employer.  It would change the fair and reasonable fault-based system in place now to a strict liability system that makes it easier for Oregon OSHA to win a contested case.

The new rule says that to be reasonably diligent an Oregon employer must prove that it:

1. Anticipated all hazards that could occur in the workplace; and then
2. Eliminated all hazards or violations in the workplace. 

This is strict liability and the proposed change would allow Oregon OSHA to penalize responsible employers who really are making reasonable attempts to identify hazards and prevent injuries in the workplace.

Changes to the Employee Misconduct Defense

Currently, if an employer trains an employee on how to safely perform a task and provides all of the proper equipment, but an employee intentionally disregards the training and does something unsafe, the employer can assert as a defense the employee’s misconduct.

Under the proposed rule change, an employer is prevented from using the defense unless they can prove that they have developed and implemented measures that identify any instance of an employee not following the employer’s procedures and that they have taken “effective corrective action” whenever an employee was caught disregarding the training.

Summary of Proposed Increases to Maximum Penalties

Oregon OSHA proposes several amendments to empower the Oregon OSHA Administrator with unfettered discretion to impose huge penalties arbitrarily. For example, Oregon OSHA proposes giving the Administrator discretion to impose a maximum penalty of $135,538 when an employer “fail[s] to keep the records, post the summaries, or make the reports required by OAR 437-001-0700” if the violation is determined to be “willful.”  The current maximum penalty is $1,000 per violation.  Oregon OSHA gives no meaningful explanation for this proposed rule change.

Oregon OSHA proposes amending OAR 437-001-0145 to empower the Administrator to impose penalties up to $13,538 for any “serious” violation and up to $135,382 for any “willful” violation.  Oregon OSHA further proposes amending OAR 437-001-0165 to increase the maximum penalty for any “repeat” violation up to $135,382, which the Administrator would have the unfettered discretion to impose “after considering the facts.” As written, the proposed amendment to OAR 437-001-0165 would empower the Administrator to skip the tiered scheme in place now under which the penalty amounts increase with each repeated violation and impose a maximum penalty of up to $135,382 for any “repeat violation.” This level of discretion is not appropriate and creates an unacceptable level of unpredictability for Oregon employers.

We urge you to take action and let Oregon OSHA know that these proposed changes are unacceptable.

You can prepare your own written comments and submit them to Oregon OSHA or we have prepared a draft comment letter for you to send to Oregon OSHA opposing the proposed changes.