Seyfarth Synopsis: Oregon OSHA institutes program for comprehensive follow-up inspections based on an employer's violation history, which necessitates employer care during inspections and negotiation of settlements.
Oregon Governor Tina Kotek signed Senate Bill 592 into law in 2023, requiring Oregon OSHA to increase penalties and implement a program for follow-up inspections for significant citations. In response, Oregon OSHA implemented its "Programmed Inspections for Cause" enforcement program designed to prioritize comprehensive inspections against employers with histories of multiple high-classification (Repeat or Willful) citations or citations issued in response to a fatality.
Comprehensive Follow-up Inspections
A "comprehensive inspection" is a wall-to-wall examination of the worksite to assess compliance with occupational safety and health regulations. Unlike focused inspections, which target specific hazards or complaints, a comprehensive inspection reviews multiple aspects of workplace safety, including:
- Worksite conditions – Identifying hazards related to equipment, materials, and overall environment.
- Employee practices – Evaluating whether workers follow safety protocols.
- Recordkeeping – Checking injury logs, training records, and compliance documentation.
- Safety programs – Assessing the effectiveness of employer safety initiatives.
Comprehensive ("wall-to-wall") inspections can be extremely lengthy and onerous, consuming management time and attention better spent on employee safety. A follow-up wall-to-wall inspection is more likely to result in significant OSHA citations and penalties, such as willfuls (maximum of $164,759 per violation, but up to $263,599 per violation if it involves a work-related fatality) or failure to abate (fined at$15,625 per day for each violation).
What Triggers a Programmed Inspection for Cause?
Oregon OSHA mandates a comprehensive inspection when any of the following conditions are met:
- A work-related fatality is linked to a violation.
- An employer commits three or more willful violations within a 12-month period.
- An employer commits three or more repeat violations within a 12-month period.
- An employer has a history of non-compliance, and the Administrator deems a full inspection necessary for employee protection.
The final trigger is the most legally dubious, as "history of non-compliance" is undefined. Ostensibly intended to enhance accountability and enhance workplace safety across Oregon, the program permits Oregon OSHA's Administrator to target employers for inspection so long as they are on a "bad history" list. The Program appears to create a system in which Oregon OSHA can circumvent the legal requirements of probable cause and neutral basis for inspection, violating employers' constitutional rights under the Due Process Clause to be free from unfair and arbitrary employment actions.
Importantly, employers inspected under this Program must learn the basis for an inspection at an Oregon OSHA opening conference; they may have legal defenses that must be raised at the opening or they will be waived.
Under the Program, these follow-up inspections must be initiated within one year of the closing conference that triggered the follow-up.
Avoiding Getting Placed on the "For Cause" List
Oregon OSHA's "For Cause" Program further spotlights the importance of employers implementing a quality Safety and Health Management System and analyzing the workplace to reduce hazards to their lowest reasonable levels. In the event Oregon OSHA comes on site, employers must effectively manage the inspection to ensure that only the agency receives only responsive, truthful information. If an employee experiences a fatality or serious injury that may result in a fatality, employers and management representatives can face criminal charges in addition to inclusion on the "For Cause" list. In the event that Oregon OSHA issues a citation, it should be resolved in a way that eliminates the employer's eligibility for a follow-up inspection under the program by ensuring the triggering criteria are not met. An employer often will be better served by contesting the citations (especially those to which it has strong defenses) and reaching a settlement with exculpatory language that protects the company.
Conclusion
Oregon OSHA's Programmed Inspection for Cause represents a critical shift in workplace safety enforcement. Employers must stay vigilant and proactively protect workers from safety and health hazards, address violations promptly, and maintain a strong safety culture. Employers who receive Oregon OSHA citations should work closely with qualified OSHA counsel to ensure that they are not subject to preventable comprehensive follow-up inspections.
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