Penalties for OSHA violations are too small to provide incentive for some employers to comply, according to OSHA Administrator Dr. David Michaels, who wants to improve the Occupational Safety and Health Act by raising penalties for violations.

He told a House subcommittee hearing on the Protecting America’s Workers Act that American workers still face unacceptable hazards. More than 5,000 are killed on the job each year, more than 4 million are injured, and thousands more may become ill later on from occupational exposures.

Moreover, said Michaels, the workplaces of 2010 are not those of 1970: the law must change as our workplaces have changed. The vast majority of America’s environmental and public health laws have undergone significant transformations since they were enacted in the 1960s and 70s, while the OSH Act has seen only minor amendments.

The Protecting America’s Workers Act (PAWA) changes the burden of proof from “willfully” to “knowingly.” Specifically, Section 311 states that any employer who “knowingly” violates any standard, rule, or order that results in the death of an employee is subject to a fine and not more than 10 years in prison. This would ease the burden of proof currently required for a criminal violation under the OSH Act because it is easier to prove a knowing violation than to establish willfulness under current cases.

In early March, OSHA sent a letter to approximately 15,000 employers who reported higher rates of workplace injuries than the national average in their respective industries. Although the letter included an overture of assistance to small employers and noted the availability of safety and health consultation services, James A. Lastowka and Eric J. Conn, occupational safety and health lawyers with McDermott Will & Emery LLP, say the real message was “get your act together because a serious OSHA inspection may be coming your way soon.”

In conjunction with sending the letter, Michaels announced that employers who received it “need to take immediate steps to protect their workers,” and the letter itself warned, “OSHA may target . . . workplaces identified in the survey for inspection in the next year.”

“Most employers want to do the right thing. But many others will only comply with OSHA rules if there are strong incentives to do so,” Michaels testified. “OSHA’s current penalties are often not large enough to provide adequate incentives, and we are very low in comparison with those of other public health agencies.”

For example, in 2001 a tank of sulphuric acid exploded at a Delaware oil refinery, killing an employee whose body literally dissolved in the acid. The OSHA penalty was $175,000, but in the same incident, thousands of dead fish and crabs were discovered, allowing an EPA Clean Water Act citation of $10 million.

Clearly, OSHA can never put a price on a worker’s life, and Michaels wants serious violations that result in death or serious bodily injury to be felonies like insider trading, tax crimes, customs violations and anti-trust violations.

Nothing focuses attention like the possibility of going to jail, testified Michaels. Unscrupulous employers, who refuse to comply with safety and health standards as an economic calculus, will think again if there is a chance that they will go to jail for ignoring their workers’ safety.

Recipients of OSHA’s letter should start preparing now for the aggressive enforcement threatened by the new OSHA. So should other conscientious employers, because it will not only help minimize the significant liability that employers may face when OSHA does arrive, but it will also make for a safer and more productive workplace in the meantime.