09.12.20.12

.12 Penalties.

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.