b'Abatement Periodextends failure to abate violation penalties to applyanyin tocitation Section 703 ofwill amend Section 10 of the Occupa which the corrective action has not been abat by the abatement date the amendmented tional Safety and Health Act of 1970. Some of the language will likely beunless ahas been issued. stay subject to interpretation-and the subject of litigation.Criminal Penalties and Sentencing According to the amendment, for each violation that the SecretaryOf greatin the penalties sectionisthe designation of new categories designates as serious, willful, or repeated, the abatement period will begininterest for criminal penalties and sentencing. U erexisting Occupational to run upon the receipt of the citation. The amendment also states thatnd the the filing of aof contest by the employer will not operate as aHealthwhoa Safety andAct of 1970, an employerisconvicted ofwillful OSHA noticestayviolation which resultedinaca.n,addition to civil penalties, be of the period of abatement.fatality,in imprisonedup to 6 formonths. Under the proposed amendment to the Act, in asituation As ofsimilar August 2010, that vote has not yet been an employer who "knov.1nglyany standard, rule, or order violates scheduled. Apparently, political strategists feelpromulgated under Section 6Act orany regulation prescribed of theof violation this will be the best opportunity to get bothunder the Act (willful violation), and thatcaused or contributed to the death of any employee,,conviction, be punished by a shall upon the MSHA andreforms passed in thisfine in accordance with Title XVIII of the United States Code and/or by OSHA Inimprisonment for not more than 10 years."same amendment to the The Congress.my opinion, the amendment to Occupational Safety and Healthof 1970 provides that, for a Actrepeated HR 5663 for OSHA contains some ofmostoffense, the potential period of prison timeisup to 20 y Both of these theears. paysubstantial onerous provisions proposed in the Protectingamendments also include the possibility of having toa America\'s Workers\'fine in addition to the prison time. Act.While potential prison sentences are also spelled out for other p le ossibactions by an employer, the amendment also creates acriminal new sanction for aviolationin serious bodilyto an Currently, when aofis filed, the period to abate the cita willfulwhich resultsharm noticecontestemployee, but does not cause death to the employee.is to be tionisstayed or tolled pending the outcome of the notice ofThis penalty contest. Underpunished by ain accordance with Title XVIII ofU States Code the language ofemployerlto begin to abatefinethenited the amendment, thewil haveor by imprisonment for up to 5or both. the citation immediately upon receipt ofFor example, ifyears the citation.theSerious bodilyis defined as ainjury or illness that inabatement period is "immediate", the employerhave to correct the al harmbodily willvolves arisk of death; protracted unconsciousness; protracted legedevenifnotice of contest is filed, immediately upon receiptsubstantial problem,theand obvious physical disfigurement;protracted loss or impairment of the citation.or either temporary or permanent of the function of amember, organ, We have all seenthat are incorrectly issued by abodily citationscomplianceor mental faculty. Under this definition, alarge number ofrkers\' officer. Ichallenged many that are later vacated either prior to or as averywohavecompensation claimants would qualify as having suffered serious bodily litigation.theharm, which could result in criminal prosecution if th em y were result ofUnder this amendment, evenifemployerisright, he will have to expend resources to take unnecessary corrective action-unlesseirplo er alleged to have committed aviolation of the Occupational Safety he spends other resources to avail himselfthe one alternative the amend willful ofand Health Act which resulted in that harm. ment offers, which is discussed below. Under ain the amendment, an employer may file a provisionmotionWhat It Means For Us with the Commission for aof the abatement period. In such a staymotion,The effective date of the amendments to the Occupational Safety and the employer will have to demonstrateHealth Act of 1970 is stated to be 90 days from the enactment of the substantialsuccessamendment. State plan stateshave to enact the provisions of the alikelihood ofin the notice of contest would that the employer will suffer irreparable harm absent aof the stayamendment within 12 months of the enactment ofby the amendment abatement periodthe federal government. that awill not adversely affect the health and safety of workers. stayIn my opinion, we are confronted \ith aserious threat. Itars veryappeThis will pretty much eliminate filing aof contest to stay noticefrom the language of the amendment that very little thought has been settlementgiven to the practicalities of the requirements of the proposed legislation. abatement in order to negotiate aof the citation unless the employer can demonstrate that it has alikelihood of success in substantialFrom expanding whistleblower protection to creating an untenableteabadefending the citation ifnotice of contest goes forward. thement situation and afor criminal penalties that could affect potential Additional language is provided in the statute which amends Sectionmany employ this pending legislation, if passed in its current form, ers, 17(d) of the Occupational Safety and Health Act of 1970. This amendmentcould have aaffect on American industry. disastrous Safety Technical&Research Committee Legal Advice7'