The Occupational Safety and Health Administration (OSHA) has announced a new Enhanced Enforcement Program (EEP), which will become effective January 1, 2008. OSHA implemented the original EEP on September 30, 2003, to “target those employers who are indifferent to their obligations under the OSH Act.” The new program continues this objective but will “focus greater enforcement emphasis on those employers that have a history of violations with OSHA” or its state equivalents (State Plans).To achieve this renewed focus, OSHA has modified the triggering criteria for EEP cases, the definition of what constitutes prior OSHA history and the procedures once a case is in the EEP.

OSHA has significantly increased the number of cases that will qualify for the program. Under the existing program, only certain high-gravity serious violations could prompt the EEP. Under the new guidelines, serious violations of any gravity will initiate enhanced treatment. The following violations will qualify for the EEP-

• a fatality inspection in which OSHA finds one or more willful or repeat (any gravity) violations related to the death
• a fatality inspection in which OSHA finds one or more serious (any gravity) violations related to the death, and the employer has either-
• an OSHA history of violations similar in kind to the violation that led to the current fatality consisting of one serious, willful or repeat violation within the last three years
• the occurrence of another fatality within the last three years regardless of whether any citation was issued
• an inspection that results in the citation of three or more serious (any gravity) violations classified as willful or repeat, and the employer has an OSHA history of violations, similar in kind to one or more violations found in the current inspection, consisting of one serious (any gravity), willful or repeat violation within the last three years
• an inspection that results in one or more failure-to-abate notices where the underlying violations were classified as serious (any gravity)
• any egregious case
• a case consisting of one or more inspections in which the proposed penalties total more than $100,000.

Because an employer’s previous violations and inspection history factor into the threshold question of EEP qualifying criteria, OSHA has clarified what constitutes “OSHA history.” Under the revised program, an employer’s OSHA history can only include final orders from federal OSHA jurisdictions and/or State Plans.

The revised EEP also alters the procedures governing the implementation of the program. First, instead of transferring any related establishments from the Site-Specific Targeting (SST) secondary list to the primary list as the previous EEP program did, OSHA will now move all related establishments on the year’s primary or secondary list to each area office’s current inspection cycle if the establishment is in the same three-digit North American Industry Classification System code (or two-digit Standard Industrial Classification System code). This change will result in OSHA inspecting related worksites sooner than it would under the previous program. Second, the EEP will now also apply to agriculture and maritime employers. Third, now if OSHA determines that the establishment’s safety and health problems need to be addressed at the company headquarters, it will not only notify the company president, but also the employee representatives. Finally, OSHA has provided a list of provisions that area directors can include in settlement agreements in connection to violations in the EEP. These provisions are–

• requiring the employer to hire a qualified safety and health consultant to develop an effective and comprehensive safety and health program with management support in the establishment, and assist the company in implementing such a program
• applying the agreement company-wide
• using settlement agreements to obtain from employers a list of their current jobsites, or future jobsites within a specified time period, in construction (and, where appropriate, in agriculture, maritime and general industry)
• requiring the employer to submit to OSHA its log of work-related injuries and illnesses on a quarterly basis and to consent to OSHA’s conducting an inspection based on the report;
• requiring the employer to notify the area office of any serious injury or illness requiring medical attention and to consent to an inspection
• obtaining employer consent to entry of a court enforcement order under Section 11(b) of the Act.