Or. Admin. Code § 437-001-0145 - Penalty for Other than Serious or Serious Violation

(1) A penalty must be assessed for any serious violation and may be assessed for any other than serious violation as established by the intersection of the probability rating and severity rating on the Penalty Schedule (Table 1). In a case where probability and severity are not appropriate considerations, a penalty may be assessed by considering the facts of the violation.

[Table 1 - Penalty table]

(2) Penalty adjustments will be made based on an employer's size for all violations. Additional adjustments for an employer's compliance history, injury and illness history, demonstrated good faith efforts, and corrective action taken at the time of the inspection will be determined by the Compliance Officer and assessed as follows:

(a) Size adjustments - based on statewide peak employment:

[Table 2 - Penalty size adjustments]

(b) History adjustments will be based on injuries and illnesses (and trends) during the previous three years, including available information from both Workers' Compensation data and Bureau of Labor Statistics. This assessment will also include a review of the employer's violation history within the past three years. Adjustments will be made as follows:

(A) 10% reduction of the base penalty if the compliance officer determines that the information demonstrates a positive history overall;

(B) No change in the base penalty if the compliance officer determines that history is what would be expected of a typical employer; or

(C) 10% increase of the base penalty if the compliance officer determines that the information demonstrates a negative history overall.

(c) Good faith adjustments will be determined by, but not limited to, review of certain criteria as follows:

(A) Evidence of an overall safety and health program.

(B) Effective communication of safety and health policies.

(C) Promotion of safety and health prior to the inspection.

(D) Employees are clearly involved in the safety and health program.

(E) Management's commitment at all levels is apparent.

(F) Worksite hazard analysis is conducted.

(G) Employees and managers alike are held accountable for safety and health.

(H) Adjustments will be made as follows:

(i) 20% reduction of the base penalty if the compliance officer determines that the information demonstrates a better than average effort to comply with the law and rules;

(ii) No adjustment in the base penalty if the compliance officer determines that the information demonstrates an employer's good faith effort is average; or

(iii) 20% increase of the base penalty if the compliance officer determines that the information demonstrates a poorer than average effort to comply with the law and rules.

(d) A 10% reduction of the base penalty will be provided for immediate correction of violations or other unsafe conditions identified during the inspection provided that such corrective action is substantial and not temporary or superficial.

(3) Penalty adjustments, except for size, will not be applied to repeat violations, violations for a failure to correct, willful violations, or any violation that the compliance officer determines contributed to an injury, illness, or death of an employee. Adjustments will not reduce the penalty to less than the mandatory minimum penalty that has been established by rule or statute or increase the penalty beyond the maximum penalty established by statute.

(4) The adjusted final penalty for a serious violation will not be less than $100.

(5) Penalties for combined violations will be calculated by taking the number of violations into account when assessing probability. Severity will be determined by identifying the most severe reasonably predictable injury or illness that could occur.

(6) The penalty for grouped violations of different rules is calculated by determining the probability and severity for the entire group.

(7) For any serious violation, the Administrator may instead, at his or her discretion, assess a penalty of between $100 and $13,653.

Notes

Or. Admin. Code § 437-001-0145

WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; WCD 12-1982, f. 9-20-84, ef. 11-1-84; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 5-1988, f. 5-16-88, ef. 5-16-88; APD 7-1988, f. 6-17-88, ef. 7-1-74;OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 7-1995, f. & cert. ef. 7-5-95; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-12; OSHA 8-2017, amend filed 12/22/2017, effective 1/1/2018; OSHA 5-2018, amend filed 11/29/2018, effective 12/17/2018; OSHA 13-2021, amend filed 11/01/2021, effective 12/1/2021; OSHA 3-2023, amend filed 11/22/2023, effective 1/1/2024

To view tables referenced in rule text, click here to view rule.

Statutory/Other Authority: ORS 654.025(2), 654.035 & 656.726(4)

Statutes/Other Implemented: ORS 654.001 through 654.295