OSHA Issues New Instance-by-Instance Penalties Policy

Seyfarth Synopsis: In an effort to significantly increase the number of citations and penalties it may issue during an inspection, OSHA has updated its enforcement procedures for inspections to permit citations for each instance of alleged non-compliance.

In its most aggressive action to-date under the tenure of Assistant Secretary for Occupational Safety and Health Doug Parker, OSHA issued a memorandum on January 26, 2023 that significantly revamped OSHA's policy for issuing Instance-by-Instance (abbreviated "IBI" by OSHA) citations for high-gravity serious violations of certain OSHA standards. Secretary Parker's revised enforcement policy harkens back to the days of Assistant Secretary David Michaels, when "shaming" employers into compliance was on the top of OSHA's agenda, rather than collaborating with employers to ensure compliance.

Subject to the factors discussed below, OSHA's revised enforcement policy permits the Agency to issue a Citation and corresponding penalty for each instance of alleged non-compliance for each separate machine, location, entry or employee. The new enforcement policy goes into effect on March 27, 2023.

The prior policy, which had been in effect and unchanged since 1990, applied only to willful-egregious citations–very rare citations with a high standard of proof. OSHA has now indicated that instance-by-instance citations can be considered for high-gravity serious violations specific to:

• lockout tagout
• machine guarding
• falls
• trenching
• respiratory protection
• permit required confined spaces and
• other-than-serious violations specific to recordkeeping

This list reflects several of the most commonly cited OSHA standards.

OSHA will look to the following factors in determining when to issue instance-by-instance citations:

• 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.

OSHA further indicates the revised policy may apply when the "text of the relevant standard allows [instance-by-instance application] (such as, but not limited to, per machine, location, entry, or employee) and when the instances of the violation cannot be abated by a single method of abatement."

In a statement accompanying the revised enforcement policy, Assistant Secretary Parker explained that the impetus for OSHA's updated enforcement guidance was to target "employers who repeatedly choose to put profits before their employees' safety, health and wellbeing." Parker's comments reference a familiar theme cited by OSHA: that employers who choose "profit over safety" must be deterred through aggressive enforcement. While this narrative often surfaces in OSHA enforcement efforts, it fails to recognize that profit and safety are not, as OSHA suggests, mutually exclusive. In fact, research indicates that effective workplace safety programs enhance profitability by reducing damaging accidents, employee injuries, medical costs, administrative expenses, legal expenses, physical damage, and lost productivity. OSHA should instead promote workplace safety and regulatory compliance and collaboration as a means to increase productivity and profitability, and not continue to falsely assert that employers face a choice between the two.

In light of the recent guidance, employers must take a proactive approach to evaluating their workplaces to minimize risks. Moreover, employers must ensure that those responsible for OSHA reporting and recording obligations at the worksite under 29 CFR 1904 are fully complying with OSHA requirements. Further, employers must be more cautious in how they approach every OSHA inspection and settlement of citations, as the revised instance-by-instance policy will enhance potential liabilities for the next five years if an employer resolves a case that involves accepting willful, repeat, or failure to abate citations or if the case involved a fatality or catastrophe. As such, to avoid the potential of facing hundreds of thousands of dollars in penalties, employer should consult experienced OSHA counsel to reduce their potential liability.

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