On January 26, 2023, the U.S. Occupational Safety and Health Administration (OSHA) issued a Memorandum, Application of Instance-by-Instance Penalty Adjustments, to guide regional and area offices in the issuance of Instance-By-Instance (IBI) citations to address high-gravity OSHA violations where the prior guidance did not achieve a sufficient deterrent effect. As of March 26, 2023, employers may face higher penalties for non-willful citations. Per an OSHA news release issued the same day, the change in guidance "is intended to ensure OSHA personnel are applying the full authority of the Occupational Safety and Health Act where increased citations are needed to discourage non-compliance."
For decades, OSHA has applied IBI citations, rather than grouping or combining violations for penalty purposes, when addressing egregious, willful citations. However, going forward, IBI penalties may be applied beyond the willful-citation scenario when OSHA is addressing other "high-gravity serious violations specific to falls, trenching, machine guarding, respiratory protection, permit-required confined space, lockout tagout, and other-than-serious violations specific to recordkeeping" when those violations occur in the "general industry, agriculture, maritime, and construction industries." IBI penalties may be assessed where:
- The employer has received a willful, repeat, or failure to abate the violation within the past five years where that classification is current;
- The employer has failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye pursuant to the requirements of 29 CFR 1904.39;
- The proposed citations are related to a fatality/catastrophe; or
- The proposed recordkeeping citations are related to injury or illness(es) that occurred as a result of a serious hazard.
If OSHA issues separate penalties for each violation, it will document each instance thoroughly to document the justification for the separate citations. According to OSHA Assistant Secretary Doug Parker, this policy targets an employer that "doesn't get it" or "those employers who repeatedly choose to put profits before their employees' safety, health, and well-being" or "who callously view injured or sickened workers simply as a cost of doing business."
OSHA will no longer group violations where doing so “does not elevate the gravity or classification and resulting penalty," but, if that is not the case, it will still consider grouping where:
- two or more serious or other-than-serious violations constitute a single hazardous condition that is overall classified by the most serious item;
- grouping two or more other-than-serious violations considered together creates a substantial probability of death or serious physical harm; or
- grouping two or more other-than-serious violations results in a high-gravity, other-than-serious violation.
"Smart, impactful enforcement means using all the tools available to us when an employer 'doesn't get it' and will respond to only additional deterrence in the form of increased citations and penalties," explained Assistant Secretary for Occupational Safety and Health Doug Parker. "This is intended to be a targeted strategy for those employers who repeatedly choose to put profits before their employees' safety, health and wellbeing. Employers who callously view injured or sickened workers simply as a cost of doing business will face more serious consequences."
The additional potential workload may be covered by an increased number of OSHA inspectors, up to 892 in 2022 from 750 in 2021, a 19% increase. Also, OSHA has increased its minimum and maximum penalties for violations by 7.7% effective January 17, 2023. Today, a serious violation can cost up to $15,625, and a willful or repeat violation can cost up to $156,259.
Calfee’s lawyers practicing in the areas of workers’ compensation, OSHA compliance, and workplace safety are available to assist your company as employees are scheduled to return to the workplace. Please contact any of the attorneys listed below or any member of our Labor, Employment, and Workers’ Compensation Group.
https://www.osha.gov/memos/2023-01-26/application-of-instance-by-instance-penalty-adjustments
https://www.osha.gov/news/newsreleases/national/01262023-0
https://www.osha.gov/memos/2023-01-26/exercising-discretion-when-not-to-group-violations
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