Alert
Alert
02.02.23
On January 26, 2023, the Occupational Safety and Health Administration (OSHA) announced new enforcement guidance to effectively increase the number of citations it can issue. OSHA’s current typical practice is to issue a citation containing multiple “instances” of an alleged violation. For example, a citation alleging violation of a machine guarding standard will contain an instance for each machine not properly guarded. Following the new enforcement guidance, OSHA is now encouraged to issue a separate citation for each instance, naturally multiplying the associated penalties.
Instance-by-Instance Citations
First, OSHA expands application of instance-by-instance (IBI) citations to high-gravity serious violations. Previously, IBI citations applied only to willful violations. After March 26, 2023, OSHA can issue IBI citations for high-gravity serious violations of certain standards (falls, trenching, machine guarding, respiratory protection, permit required confined space, lockout tagout) and for other-than-serious violations of standards specific to recordkeeping. The new guidance applies to general industry, agriculture, maritime, and construction industries.
IBI citations may be applied per machine, location, entry or employee, and when the instances of violation cannot be abated by a single method of abatement. OSHA has discretion to issue IBI citations in consideration of the following factors:
While the first three factors are straightforward, we understand the fourth factor to address situations where a recordkeeping violation relates to a safety condition that caused an injury or illness. For example, an unreported or misrecorded case may “hide” serious hazards.
Authority Not to Group Violations
Second, OSHA reiterates its authority not to group violations and instead cite violations separately. Where violations are separate and distinct, where different conduct gave rise to the violations, or where different abatement measures are required, OSHA can issue multiple citations instead of grouping them. Violations should not be grouped where grouping does not elevate the gravity or classification and resulting penalty.
Conclusion
OSHA’s justification for the new guidance is that increased penalties will achieve a deterrent effect by incentivizing employers to protect workers and comply with safety standards and regulations. Employers should review their procedures for compliance with the specific standards now subject to IBI citations, ensure proper injury and illness reporting and recordkeeping, and assess any willful, repeat, or failure to abate violations received within the past five years. Upon receiving IBI or ungrouped citations, employers should evaluate whether those citations are proper.
For more information or assistance with workplace safety compliance and litigation, please reach out to your regular Pillsbury contact or the authors of this alert.