OSHA Updates Penalty Structure and Capitol Hill Puts Spotlight on Heat, VPP

The Next Edition (#3) Musings from Jim Frederick Jim and Heather MacDougall, Esq. and CSP for workplace health and safety watchers (originally published in The Safety Scoop on July 21, 2025)

UPDATES FROM OSHA

Updates from the Occupational Safety and Health Administration, along with each of our perspectives on what the changes might mean.

Changes to Penalty Reduction Policy Benefit Small Employers

OSHA FOM is available on its website

On July 14, the US Department of Labor, Occupational Safety and Health Administration (OSHA) announced that they have updated guidance on penalty and dept collection procedures in the OSHA Field Operations Manual (FOM).  The OSHA FOM is always a good webpage to include in your favorites or bookmarks on your go-to web browser.

The gist of the change is that OSHA will:

1. Increase penalty reductions for small employers;

2. Expand the definition of small employers that receive that reduction;

3. Expand the Agency’s use of penalty reductions for immediate abatement of a hazard during (or soon after an inspection); and

4. Provide penalty reductions for employers without a history or recent history of OSHA enforcement.

A few other notes on these changes:

• The OSHA FOM will extend the small business 70% penalty reduction component to 25 or fewer employees, and they have removed language that precludes the penalty reduction for more serious citations.

• The OSHA FOM has expanded the time for a quick fix (or immediate abatement) of a hazard from during the inspection to up to 15 days if the fix requires more time to purchase materials or fabricate a part.

• The OSHA FOM will now recognize a site that has not had an OSHA inspection in prior five years before in consideration of penalty reduction.

Jim’s thoughts on FOM changes:

The simple question that I always ask about worker safety and health policy changes is—Will the change improve worker safety and health? In the case of the changes to the FOM, I think that it is a mixed bag. 

• IMO—OSHA enforcement has historically and continues to work to improve workplace safety and health. What employers do around safety and health is at least influenced by the existence of OSHA enforcement. I often say, OSHA and the safety & health profession have a symbiotic relationship. Neither exist as they do today without the other. OSHA enforcement has an impact on the direct workplace where it takes place. It also impacts the organizations at other sites where the employer operates (e.g., a construction contractor moving to a new site). And enforcement has an impact on other workplaces in the area or in similar workplaces that learn about the enforcement activity.

• Increasing the small business size to 25 or fewer employees to be included in larger penalty reductions may assist those small businesses in moving forward constructively with improved safety and health systems.

• OSHA has several key functions—one of them is to be a law enforcement agency. In a law enforcement context, I’m not sure that smaller speeding ticket penalties result in safer roadways. OSHA enforcement and speeding tickets is not an apples-to-apples comparison, but it is useful consideration.

• I have always contended that the OSHA citation and penalty are secondary, the primary focus is a safe workplace where the hazards are mitigated. Formally extending the quick fix option to 15 days should result in more hazards being addressed, but it could leave a serious hazard in place for two weeks without an interim control measure. I wish that our overall big picture system in place required abatement of all (or almost all) hazards during the appeal process. Sometimes employers contest (appeal) an OSHA citation, and the hazard remains in place for a very long time before being corrected (or in if the DOL loses the case—sometimes on a technicality—it may not be corrected).

• Providing an exclusion to penalties if OSHA hasn’t visited a site ever or within five years (without significant citations) will result in many penalty reductions because OSHA enforcement staff is small as compared to the number of workplaces within the scope of the agency’s mission. On average, OSHA could visit every workplace once in a 200+-year timeframe. OSHA penalties are generally not large to begin with—particularly as compared to other governmental enforcement activities (e.g., environmental law violation penalties). Lower penalties don’t seem to equate to improved workplace safety and health. Congress has passed legislation to increase OSHA penalties with inflation yearly in part because they had been deemed to be too low to be impactful.

Heather’s thoughts on FOM changes:

While I agree that an important question to answer is whether the change will improve worker safety and health, one observation I have is that the changes to OSHA’s FOM support proactive compliance and recognize employers with strong safety records. That said, I agree with Jim that OSH Act penalties are low. But, to me, that is a different issue—What should Congress authorize as penalties? In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Improvements Act (I know, a mouthful, right?) to adjust monetary penalties—maximum and minimum—assessed by OSHA and other agencies. OSHA then sets policy to allow penalty reductions—in this case, for small employers (and in other cases, for employers based on “good faith” and “history of previous violations”). I would argue, raise the penalty maximums but keep the penalty reduction structure and incentives available for small employers. As I have previously shared, I think OSHA’s resources are well spent if it works more collaboratively with employers and other stakeholders. Cooperation does not need, in my opinion, need to detract from compliance and enforcement, but rather can amplify it.

Regarding abatement, when adjusting penalties, abatement efforts are part of the consideration of an employer’s good faith efforts. However, any proposal to require employers to abate a cited hazard before their contest to a citation has been resolved, in my opinion, undermines their constitutional right to due process. Employers have a right to contest OSHA citations and penalties and forcing them to take costly or disruptive corrective actions before the Occupational Safety and Health Review Commission (OSHRC) has ruled on the merits of the case presumes guilt before a fair hearing. Further, OSHA already has tools (e.g., imminent danger orders under Section 13 of the OSH Act) to require urgent action when there is a clear, immediate threat to worker safety.

Abatement may involve significant expense, operational disruption, or changes to infrastructure and workflows. If the citation is ultimately vacated or modified, the employer may have made unnecessary investments, suffered business impacts, or altered operations based on an unfounded allegation.

It is also important to note that if an employer contests the citation and proposed penalties, OSHRC has authority for assessing civil penalties under the OSH Act.

One (or two) more thought(s) from Jim:

No disagreement from me on the importance of working proactively-cooperatively-constructively with employers, workers, and other stakeholders. But I do believe that increasing that part of OSHA’s work at the expense of OSHA’s enforcement responsibilities does not make good sense for worker safety and health. The OSHA budget equates to less than $4 per year per worker. Like I always say, OSHA is trying to meet its mission for less than the cost of a cup of coffee at your favorite coffee shop per worker included in the scope of the Agency’s mission. 

IMO—abatement is almost always congruent with improving the safety and health management system in the workplace that results in reduced risk of injury and illness to workers in the impacted workplace(s).

SAFETY NEWS FROM THE HILL

Shifting over to Capitol Hill: We’re breaking down last week’s workplace safety news—again with some friendly back-and-forth.

A congressional bill and hearing put workplace safety in the spotlight on Capitol Hill

Democrats Renew Push for Federal Heat Safety Standard for Workers

On July 17, House and Senate Democrats have once again introduced legislation aimed at protecting workers from hazardous heat exposure on the job. The “Asunción Valdivia Heat Illness, Injury, and Fatality Prevention Act” has been proposed multiple times over the past five years but has yet to pass.

The bill would direct OSHA to issue a mandatory standard to protect both indoor and outdoor workers at risk of heat-related illnesses. Measures would include paid rest breaks in cool areas, access to drinking water, limits on time spent in high-heat environments, and emergency procedures for workers showing signs of heat stress, according to a fact sheet on the bill.

Under the proposed legislation, OSHA would be required to issue an interim final rule within one year of enactment. A summary of the bill discusses a process for OSHA to regularly update and strengthen the standard. Additionally, the legislation would extend the statute of limitations beyond what is currently allowed under the OSH Act. While the OSH Act allows 6 months for citations and 30 days for whistleblower claims, the new bill proposes extending those to 4 years and 180 days, respectively. It would also require OSHRC to give significant weight to OSHA’s interpretation of the heat standard it establishes.

Jim's and Heather's thoughts on the bill:

While the bill is reintroduced against the backdrop of OSHA considering the proposed Heat Illness and Injury and Prevention standard, we both see little chance of the Congressional bill passing.

Renewed Efforts to Codify OSHA’s Voluntary Protection Programs

On July 16, the US House of Representatives Committee on Education & Workforce held a hearing titled, “Safe Workplaces, Stronger Partnerships: The Future of OSHA Compliance Assistance.”  The hearing witnesses included:

• Chris Williams, Executive Director, Voluntary Protection Program Participant Association (VPPPA),

• Myron Harper, National Health & Safety Director for CINTAS,

• Rebecca Reindel, Director of Safety and Health for the American Federation of Labor – Congress of Industrial Organizations (AFL-CIO), and

• Kevin Sell, Senior Manager, Corporate Development, Kwest Group, testifying on behalf of the Associated Builders and Contractors (ABC)

The focus of the hearing was on compliance assistance programs available to the regulated community and was primarily focused on the OSHA Voluntary Protection Program (VPP) and included a recognition of the OSHA Challenge Program to help facilities explore a pathway to improved safety and health and possible VPP participation. It is important to note that there are many areas of OSHA’s compliance assistance that were not included in the hearing.

Jim’s thoughts on the hearing:

I am a big believer in safety and health management systems (SHMS). Effective and mature SHMS in more workplaces reduces the risk of injury and illness to workers in those workplaces. For example, OSHA provides a great roadmap to workplaces to implement and improve their SHMS through its Safe+Sound campaign. Safe+Sound is one example of an OSHA compliance assistance program that wasn’t included in the hearing. If your workplace isn’t familiar with Safe+Sound, check it out—it is free and provides good information, guidance, and resources.

OSHA VPP basically provides a SHMS framework for employers and workers to collaborate and implement. Then, through a process of review and approval, a site can be recognized by OSHA as a VPP site.

The three industry witnesses (VPPPA, CINTAS and Kwest Group) expressed support for cooperative programs like VPP. The labor witness (AFL-CIO) shared concerns about health and safety in workplaces and the occupational safety and health regulatory and research framework in the US and recent impacts on that framework.

The VPPPA has long supported a VPP bill in Congress. The current version of the bill is HR 2844 the Michael Enzi Voluntary Protection Program Act. Discussion of the bill was included in the hearing, including the need to codify VPP and the need to set a specific percentage of OSHA budget aside for the VPP program.

The proponents of the bill contend that VPP needs to be codified so that the 40-year-old program can’t be taken away from the participants. They also contend that a specific portion of OSHA’s budget should be committed to the program.

It is 100% accurate that OSHA may currently change policies related to VPP. Although over 40-years since VPP began, the program has remained part of OSHA’s work.

Also, there is already a long-standing budgetary requirement for OSHA to commit a specific portion of their budget for VPP.  OSHA has not had a problem to meet that budgetary requirement from Congress. HR 2844 would raise the amount for the program.

The problem with increased funds going to VPP means that less money will be in place for other OSHA programs.  The current OSHA budget proposal eliminates the longstanding OSHA training grant program and reduces a number of other budget categories. Increasing the percentage of the OSHA budget committed to VPP is not a zero-sum game. It will reduce OSHA’s ability to do work in other areas. Less money in other parts of OSHA’s budget to further help workers at a few thousand workplaces with really good safety and health may increase the risk of injury and illness to workers in the millions of other workplaces. 

Heather’s thoughts on the hearing:

As I said in one of my blog posts, it is unfortunate that we did not see the fruits of Assistant Secretary Doug Parker’s (and Jim’s!) work on behalf of OSHA, before the end of his tenure, on the efforts to modernize VPP. I testified during OSHA’s listening session on VPP in 2023 and submitted comments. I encourage OSHA during the Trump Administration to continue this work, and I commend Jim and Doug for their willingness to engage in a discussion on the benefits and possible expansion of VPP, which traditionally is an unpopular program in the eyes of Democrats.

I think there’s a misconception that it’s one side or the other. I don’t agree that dollars spent on collaboration mean less enforcement. I wish we could get beyond that political narrative.

If anything, a dollar invested in OSHA's collaborative efforts—such as partnerships, education, voluntary programs, and technical assistance—has the potential to deliver returns that far exceed the value of a dollar spent strictly on enforcement. While enforcement remains a necessary tool to deter violations, collaborative initiatives have a broader and often more sustained impact across American workplaces.

By working proactively with employers, workers, trade associations, and unions, OSHA can influence safety practices across entire industries, not just individual worksites. Collaborative strategies such as the VPP, the Alliance Program, and compliance assistance resources help organizations build internal safety capacity, often creating ripple effects throughout supply chains and industry peers. This proactive approach leads to improved organizational cultures that prioritize safety, reduced injuries and illnesses, and greater long-term compliance—often without the adversarial dynamics that enforcement can bring.

Additionally, collaborative investments encourage innovation in safety practices and technology, promote worker engagement, and foster trust between regulators and stakeholders. This can be especially important in reaching small and mid-sized businesses that may lack the resources to interpret and implement complex standards without guidance. While enforcement is critical for accountability, collaborative investments can accelerate systemic change—delivering multiplier effects that enforcement alone cannot match.

In short, strong partnerships are vital for making OSHA more effective, and employer cooperation with OSHA encourages stakeholders to continually improve workplace health and safety and use resources in a manner that more broadly reaches workplaces and engages American workers.

It is time to think about doing OSHA differently and to conduct a program evaluation of what is the return of the budgetary investment in this agency and to refocus resources where they can have the most potential consequence. I believe that includes better use of agency resources to work with employers, and leveraging their resources, to develop strong safety management systems that incorporates the key elements of hazard identification and assessment; worker participation and engagement; and management leadership and accountability.

One more thought from Jim:

In a similar, not identical, perspective, I believe that working with ALL stakeholders, leveraging their institutional knowledge and capacity and seeing mature safety and health management systems in place in every workplace is a key to moving the needle on worker safety and health.

Last thought from Heather:

Okay, Jim, I’ll let you have the last word (kind of) because I think we both can agree on that!