• The Occupational Safety and Health Administration (OSHA) set precedent this summer and published an emergency Covid-19 rule in the Federal Register taking jurisdiction over and providing justification for Covid-19 being a workplace hazard for healthcare employment.
  

• Early in September, Biden announced his 100-or-more employee Covid-19 vaccine mandate and tasked OSHA with drafting an enforcement rule to exert emergency vaccine compliance authority over companies with 100 or more employees.
  

• The legislative provision that passed the Budget Committee raises the OSHA fines for non-compliance 10 times higher – and up to $700,000 for each “willful” or “repeated” violation. Speaker Nancy Pelosi has not announced when the House will vote on the reconciliation bill that includes the new OSHA fines.
  

• If the legislation is enacted, OSHA could levy draconian fines to enforce Biden’s vaccine mandate, a move that could rapidly bankrupt non-compliant companies. The Biden mandate affects employers collectively employing an estimated 80 million workers.
  

Quote:SEC. 21004. ADJUSTMENT OF CIVIL PENALTIES.

(a) OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970.—Section 17 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 666) is amended—

(1) in subsection (a)—

  (A) by striking ‘‘$70,000’’ and inserting ‘‘$700,000’’; and

(B) by striking ‘‘$5,000’’ and inserting ‘‘$50,000’’;

(2) in subsection (b), by striking ‘‘$7,000’’ and inserting ‘‘$70,000’’; and

(3) in subsection (d), by striking ‘‘$7,000’’ and inserting ‘‘$70,000’’

That provision would change existing law relating to OSHA’s enforcement fines, the very same section of law whose fines OSHA referenced in its June Covid-19 healthcare worker rule and is likely to use again to enforce its forthcoming vaccine compliance rules.

The Existing Law

29 U.S.C.§ 666 lays out OSHA enforcement fine levels. The 1970-enacted law reads:

29 U.S. Code § 666 - Civil and criminal penalties

(a) Willful or repeated violation Any employer who willfully or repeatedly violates the requirements of section 654 of this title, any standard, rule, or order promulgated pursuant to section 655 of this title, or regulations prescribed pursuant to this chapter may be assessed a civil penalty of not more than $70,000 for each violation, but not less than $5,000 for each willful violation

(b) Citation for serious violation Any employer who has received a citation for a serious violation of the requirements of section 654 of this title, of any standard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, shall be assessed a civil penalty of up to $7,000 for each such violation [emphasis added].

Each year, OSHA adjusts these penalties for inflation, so for 2021, the fines are not actually capped at $70,000 and $7,000, but $136,532 and $13,653 per violation. If House Democrats get their way, by enacting the page 168 changes, those fines would increase to $700,000 for willful and repeated violations and $70,000 for serious violations. 

Section 654, cross-referenced in the OSHA enforcement penalty code, outlines the law requiring workplaces to be “free from recognized hazards” causing harm or death:


29 U.S. Code § 654 - Duties of employers and employees

(a) Each employer—

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this chapter.

(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this chapter which are applicable to his own actions and conduct [emphasis added].

Quote:“OSHA has been limited in its ability to impose penalties high enough to motivate the very large employers who are unlikely to be deterred by penalty assessments of tens of thousands of dollars, but whose noncompliance can endanger thousands of workers …”