On January 26, 2023, OSHA issued two enforcement memoranda accompanied by a clear message to employers from Assistant Secretary for OSHA Doug Parker: employers who “choose to put profits before their employees’ safety, health and wellbeing” will be targeted. Aggressively.
OSHA’s first memorandum revises and significantly expands its seldom used instance-by-instance (“IBI”) policy. The decision to cite each and every instance of alleged non-compliance as opposed to “grouping” interrelated violations of different standards into a single citation and penalty is a matter Congress committed to OSHA’s prosecutorial discretion. Since 1990, OSHA has limited its practice of issuing citations on an IBI basis to “egregious willful citations.” However, OSHA’s revised guidance, effective March 27, 2023, now grants OSHA the discretion to issue a citation and corresponding penalty for individual high-gravity serious violations specific to:
- Lockout tagout;
- Machine Guarding;
- Respiratory Protection;
- Permit Required confined spaces; and
- Other-than-serious violations specific to recordkeeping.
This list reflects many of OSHA’s Top 10 most frequently cited standards as well as current national and local targeted inspection programs. OSHA provides the following factors OSHA Area Directors should consider and document when determining to issue IBI citations:
- The employer has received a willful, repeat, or failure to abate violation within the past five (5) years where that classification is current;
- The employer has failed to report a fatality, in patient 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.
In addition to revising its IBI policy, OSHA’s second memorandum also issues a pointed reminder to Regional Administrators and Area Directors of their authority not to group violations. It reiterates appropriate scenarios when grouping is appropriate, namely when “the same abatement measures correct multiple violations and/or when substantially similar violative conduct or conditions giving rise to the violations is involved.” Grouping violations should be considered when:
- 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 create 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.
In cases where grouping does not elevate the gravity or classification and resulting penalty, then violations should not be grouped if the evidence allows for separate citations.
Together, these two memoranda will likely result in significantly increased penalty amounts and overall citations in the short-term and enhanced liability for repeat, willful and failure to abate citations in the long-term.
Employers are encouraged to consult OSHA defense counsel and to exercise caution with respect to each OSHA inspection, citation, and informal conference.