Redefining “reasonable diligence”
Amidst the chaos of COVID-19, the Oregon Occupational Safety and Health Administration has quietly moved forward with proposed changes to two administrative rules that would stack the deck against employers in contested cases. Oregon OSHA’s Proposed Amendments in General Administrative Rules to Clarify Employer’s Responsibilities and Oregon OSHA’s Proposed Increase of Certain Minimum and Maximum Penalties for Alleged Violations.
These rule changes seem to be about agency convenience in contested cases, not employee safety.
Oregon law says that for an employer to be liable for a serious violation, Oregon OSHA must prove that the employer knew, or with the “exercise of reasonable diligence” could have known, of the violation. Recently, the Oregon Supreme Court has made clear that the burden is on Oregon OSHA to prove what is "reasonable" and what is "diligence" under the circumstances of each case. Now, Oregon OSHA is attempting to change that court ruling.
Oregon OSHA proposes redefining “reasonable diligence” to make employers strictly liable so that the agency can easily win a contested case. They are shifting the burden of determining fault to employers -- despite clear direction from the Supreme Court and legislature. Additionally, the agency’s rule changes make the “unpreventable employee conduct” defense entirely useless, which further lessens Oregon OSHA’s burden of proof. This is an abuse of power for an agency that already has stepped outside the bounds of its authority during this crisis.
Further, through a separate rulemaking, the agency is trying to give Oregon OSHA’s Administrator unlimited discretion to impose huge penalties: $13,538 for any “serious” violation and up to $135,382 for any “willful” violation. These enormous fines could be assessed for just repeat paperwork violations. Or worse, these new rules could be used against businesses struggling to comply with COVID-19 restrictions.
It is evident that these rule changes are focused on ensuring Oregon OSHA’s ability to penalize employers for serious violations with minimal effort and maximum penalties.
Oregon OSHA will adopt these rule changes at the end of October. There will be a final opportunity for in-person testimony on October 28, 2020 at 10:00 AM. Interested parties can register for the Public Hearing on Employer Responsibilities
. Written comments are due on October 30th.
|Post Date: 2020-10-16 16:41:10||Last Update: 2020-10-16 16:57:50|