OSHA enforcement change puts teeth in penalties for serious violations

(Photo: Reuters Connect)

The U.S. Department of Labor changed enforcement guidance to allow higher OSHA fines with intent to discourage employers from repeatedly exposing workers to life-threatening hazards.

Occupational Safety and Health Administration regional and area administrators now have discretion to apply “instance-by-instance citations” penalty adjustments in appropriate cases to achieve a deterrent effect. The policy it alters, published in 1990, applied only to willful citations.

In a memorandum on the new guidance, OSHA says it “believes that a more expansive application of instance-by-instance citations will incentivize employers to proactively prevent workplace fatalities and injuries and provide OSHA another tool to use on its mission to ensure safe and healthful working conditions for America’s workforce.”

The so-called IBI citations can now be applied to cases 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. These conditions include:

• falls
• trenching
• machine guarding
• permit-required confined space
• respiratory protection
• cases with other-than-serious violations specific to recordkeeping
• lockout/tagout

A decision to use IBI citations should normally be based on consideration of one or more of these factors:

• 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 be applied when the text of the relevant standard allows (such as per machine, location, entry, or employee), and when instances of violation can’t be abated by a single method.

The change is intended to ensure OSHA personnel are applying the full authority of the Occupational Safety and Health Act where increased citations are needed to encourage compliance. The new guidance covers enforcement activity in general industry, agriculture, maritime and construction industries.

The new guidance becomes effective on March 27, 2023. The current policy has been in place since 1990 and applies only to egregious willful citations.

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.

“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.”