The world may never really know exactly how individual penalties are calculated for a particular company, but the OSHA and MIOSHA Field Operations Manuals (FOMs) contain an abundance of procedures and criteria, including lots of “professional judgment” that are used in penalty calculations. Since the manuals are long and technical we’ll just look at some highlights.
Four main factors go into calculating fines for safety violations:
Gravity of the violation(s)
Size of the company
Good faith effort to comply
History of previous violations.
Of these four main factors, Gravity is the primary factor used to calculate penalties. According to MIOSHA’s FOM, to determine the gravity of a violation two assessments are made by the inspector:
What is the severity of the injury or illness which could result from the alleged violation.
What is the probability that an injury or illness could occur as a result of the alleged violation.
Severity is then broken down into the following levels:
High Severity: Death from injury or illness; injuries involving permanent disability; or chronic, irreversible illnesses.
Medium Severity: Injuries or temporary, reversible illnesses resulting in hospitalization or a variable but limited period of disability.
Low Severity: Injuries or temporary, reversible illnesses not resulting in hospitalization and requiring only minor supportive treatment.
Probability is categorized into either greater probability or lesser probability:
Greater Probability results when the likelihood that an injury or illness will occur is judged to be relatively high.
Lesser Probability results when the likelihood that an injury or illness will occur is judged to be relatively low.
So, the bottom line here is that the Gravity of a violation will increase as the perceived severity of the injury increases. Gravity also increases as the perceived probability of injury increases.
There is hope for employers in that MIOSHA and OSHA both provide penalty reductions based on size of the company, Good Faith Efforts and history of previous violations.
Size of the Company - According to the FOM Size Reduction Table, companies with 10 or fewer employees (nationwide) can receive a reduction of up to 80%. However, if violations are willful, repeat, failure to abate, or are high gravity or serious, indicating a lack of concern for employee safety and health, the employer may only qualify for a partial reduction in penalty for size
Good Faith Effort to Comply - A penalty reduction of up to 30 percent (based on the inspector’s professional judgment) is permitted if there is evidence of an employer’s good faith efforts to comply with MIOSHA requirements. Good faith efforts include the employer’s overall compliance and cooperation during the inspection, housekeeping around the facility, PPE usage, and training programs, among others. The level of perceived good faith is recorded by the inspector on the Good Faith Worksheet.
History of Previous Violations – Employers can qualify for a reduction of 10 percent if they have not been cited by MIOSHA for any serious, willful, or repeat violations within the past 3 years. However, employers are not eligible for this reduction if they are being cited for things like failure to certify abatement.
To obtain a copy of the current MIOSHA FOM click here. To obtain a copy of the current federal OSHA FOM click here.
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