Current through Register Vol. 51, No. 19, September 20, 2024
A. Scope. This
regulation applies to the assessment of civil penalties by the Commissioner
under Labor and Employment Article, §§5-809 and
5-810, Annotated
Code of Maryland, in all cases arising from inspections conducted on and after
the effective date of this regulation.
B. Definition. In this regulation,
"Commissioner" means:
(1) The Commissioner of
Labor and Industry;
(2) The
Commissioner's authorized representative; or
(3) A person acting pursuant to a delegation
of authority from the Commissioner of Labor and Industry.
C. In assessing a penalty for a violation of
the law, a regulation, or an order, the Commissioner shall consider the
following factors in accordance with this regulation:
(1) Gravity of the violation for which the
penalty is to be assessed;
(2) Good
faith of the employer;
(3)
Existence and quality of a safety and training program;
(4) Injury and illness experience of the
employer;
(5) The extent to which
the existence of the violation was known to the employer, but remained not
corrected;
(6) History of
violations by the employer;
(7)
Extent to which the current violation is part of a recurrent pattern of the
same or similar type of violation;
(8) Size of the business of the employer
against whom the penalty is to be assessed; and
(9) Actual harm to human health, including
injury or illness.
D.
Gravity-Based Penalty.
(1) Gravity.
(a) Based on the gravity of a violation, the
Commissioner shall assess up to $5,000.
(b) The Commissioner shall determine the
amount to assess for the gravity of the violation by considering the:
(i) Severity of the most serious injury or
illness that is reasonably predictable from the hazard; and
(ii) Probability that an injury or illness
will arise from a hazard.
(c) The Commissioner shall assign each hazard
a severity assessment and a probability assessment in accordance with this
regulation.
(2) Severity
Assessment. The Commissioner shall assign the most serious injury or illness
which is reasonably predictable from the safety or health hazard cited, a
severity assessment of 1 to 10 as follows:
(a) Death, injuries, or illness involving
permanent disability or a chronic, irreversible condition-severity factor of 8
to 10;
(b) Injuries or temporary,
reversible illnesses resulting in hospitalization, or a variable but limited
period of disability-severity factor of 5 to 7;
(c) Injuries or temporary, reversible
illnesses not resulting in hospitalization and requiring only minor supportive
treatment-severity factor of 2 to 4; and
(d) Hazard violation characterized as
other-than-serious-severity factor of 1.
(3) Probability Assessment.
(a) Probability for Safety or Health Hazards
When Samples are not Taken. For a safety or health hazard when samples are not
taken, the Commissioner shall determine the probability that an injury or
illness will arise from the apparent violation by assigning a value of 1 to 10
to each of the following factors:
(i) The
number of employees exposed, with a value of 1 being the lowest number of
employees exposed;
(ii) The
frequency of exposure, with a value of 1 being the lowest frequency;
(iii) The proximity of the employee to the
zone of danger, with a value of 1 being the lowest proximity; and
(iv) Working conditions, with a value of 1
being conditions least likely to contribute to injury or illness.
(b) Probability for Safety and
Health Hazards When Sampling is Conducted. For a safety or health hazard when
sampling is conducted, the Commissioner shall determine the probability that an
injury or illness will arise from the hazard by considering:
(i) The number of employees exposed with a
value of 1 being the lowest number of employees exposed;
(ii) The duration of exposure with a value of
1 being the lowest duration of exposure;
(iii) The use of appropriate personal
protective equipment with a value of 1 being the lowest; and
(iv) If applicable, an evaluation of the
medical surveillance program.
(c) Probability Assessment. The Commissioner
shall total factors assigned pursuant to §D(3)(a) or (b) of this
regulation and divide by the number of factors considered to determine the
probability assessment.
(4) Gravity Assessment. The Commissioner
shall determine the gravity-based penalty for each violation by adding the
severity assessment and the probability assessment, dividing by 2, and
multiplying the quotient by $500.
E. Penalty Adjustment Factors.
(1) The Commissioner may reduce the
gravity-based penalty on the basis of an employer's good faith, size of
business, and history in accordance with §§F-H of this
regulation.
(2) The Commissioner
shall calculate the penalty adjustment factor only once for each employer,
after the gravity-based penalty has been determined for each violation and the
general character of the employer's performance is apparent.
F. Good Faith.
(1) Based on the degree of employer good
faith, the Commissioner may reduce the gravity-based penalty by a maximum of 25
percent.
(2) The Commissioner shall
consider the following in determining whether to reduce the gravity-based
penalty based on an employer's good faith factor:
(a) The existence and quality of a safety and
health program and a training program, that:
(i) Provides for appropriate management
commitment and employee involvement,
(ii) Provides for worksite analysis for the
purpose of hazard identification,
(iii) Provides for hazard prevention and
control measures,
(iv) Provides for
employee training and instruction relative to the hazards of the work being
performed, including hazard communication, lockout-tagout, hazardous materials
and emergency responses, safety and health programs for construction, and
trenching and excavation, and
(v)
Has deficiencies that are only incidental;
(b) The injury and illness experience of the
employer;
(c) The level of
supervision and of employer concern and knowledge about safety and health
requirements;
(d) The extent to
which the employer knew of the violation and failed to take action to correct
it; and
(e) Employer action to
abate an apparent violation or mitigate exposure during the
inspection.
G. History.
(1) Based on an employer's history of
violations, the Commissioner may reduce the gravity-based penalty by a maximum
of 10 percent.
(2) The Commissioner
shall consider the following in determining whether to reduce the gravity-based
penalty based on an employer's history:
(a)
Nature and extent of the employer's history of prior MOSH violations;
and
(b) Extent to which the
violation at issue is part of a recurrent pattern of the same or similar type
of violation.
H. Size.
(1) "Size" means peak employment at all of an
employer's establishments and work locations during the 12-month period
preceding a violation.
(2) Based on
the size of an employer, the Commissioner may reduce a gravity-based penalty by
a maximum of 60 percent in accordance with the following schedule:
(a) 1 to 25 employees, maximum 60 percent
reduction;
(b) 26 to 100 employees,
maximum 40 percent reduction;
(c)
101-250 employees, maximum 20 percent reduction; and
(d) 251 or more employees, no
reduction.
I.
Actual Harm to Human Health, Including Injury or Illness.
(1) Based on the actual harm to human health
or well-being, arising from a hazard, the Commissioner shall assess up to
$2,000.
(2) The Commissioner shall
determine the amount to assess for the actual harm factor by considering the
degree and nature of actual harm to an employee.
(3) The Commissioner may not apply an
adjustment factor to a penalty assessed for actual harm.
J. Penalty Assessment.
(1) In determining the total penalty to
assess for a violation, the Commissioner shall comply with this
section.
(2) For a serious
violation, the Commissioner shall:
(a)
Determine the gravity-based penalty;
(b) Reduce the gravity-based penalty by the
penalty adjustment factor; and
(c)
Add to the adjusted gravity-based penalty any assessment for actual
harm.
(3) For an
other-than-serious violation, when the Commissioner determines to issue a
penalty, the Commissioner shall assess the penalty by first determining the
gravity-based penalty and adjusting it by the appropriate penalty adjustment
factor, and then adding any assessment for actual harm.
(4) Willful Violation.
(a) When an employer willfully violates the
law, a regulation, or an order, the Commissioner shall:
(i) Determine the gravity-based
penalty;
(ii) Reduce the
gravity-based penalty by the penalty adjustment factor determined for the
employer;
(iii) Add any assessment
for actual harm; and
(iv) Multiply
the sum by 10.
(b) If
the penalty determined under §J(4)(a) of this regulation is less than
$5,000, the Commissioner shall propose a penalty of $5,000.
(5) When an employer repeatedly
violates the law, a regulation, or an order, the Commissioner shall:
(a) Determine the gravity-based
penalty;
(b) Reduce the
gravity-based penalty by the penalty adjustment factor established for the
employer;
(c) Add any actual harm
assessment; and
(d) Multiply the
total by:
(i) 2, for the first
repeat;
(ii) 4, for the second
repeat;
(iii) 6, for the third
repeat; and
(iv) 10, for the fourth
repeat.
(6)
In negotiating a bona fide settlement of a citation, the Commissioner may
adjust a penalty assessed in accordance with this regulation in a manner
appropriate under the relevant statutory factors and the facts and
circumstances of the case.