OSHA announces enforcement guidance to make penalties more effective—seeks to hold employers to greater account for safety & health failures

In a press release issued on January 26^th, OSHA announced new enforcement guidance to make its penalties more effective in, “stopping employers from repeatedly exposing workers to life-threatening hazards or failing to comply with certain workplace safety and health requirements.”  According to OSHA, the goal of this new guidance is to save lives, target employers who “put profit over safety” and hold employers to a higher level of accountability for safety and health failures.

Instance-by-Instance Citations

OSHA now has the authority to cite certain types of violations as “instance-by-instance citations” for cases where the agency identifies “high-gravity” serious violations of OSHA standards specific to certain conditions where the language of the rule supports a citation for each instance of non-compliance. This new Instance-by-Instance Penalty Adjustments policy outlined in this memorandum will become effective 60 days after this release (March 27, 2023).

The press release identifies these conditions to include lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching and for cases with other-than-serious violations specific to record keeping.

Factors to be Considered

The purpose of this change is to ensure that OSHA personnel are applying the “full” authority of the OSH Act where increased citations are needed to discourage non-compliance. According to the agency, a decision to use instance-by-instance citations should normally be based on consideration of one or more specific factors. The factors to be considered include:

• The employer has received a willful, repeat, or failure to abate 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.
• The proposed recordkeeping citations are related to injury or illness(es) that occurred as a result of a serious hazard.

Instance-by-instance citations may also be applied when the text of the relevant standard allows (such as per machine, location, entry, or employee), and when the instances of violation cannot be abated by a single method of abatement. The memorandum further provides that agency inspectors should document each instance thoroughly when an inspection may result in instance-by-instance violations. It offers examples of this thoroughness: type of material being processed, equipment, facility conditions, human factors, personal protective equipment, etc.

In a second action, OSHA is reminding its Regional Administrators and Area Directors of their authority not to group violations, and instead cite them separately to more effectively encourage employers to comply with the intent of the OSH Act.

Existing guidance on instance-by-instance citations can be found in the OSHA Field Operations Manual, and CPL 02-00-080, “Handling of Cases to be Proposed for Violation-by-Violation Penalties.”

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