The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has stepped up enforcement to deter employers from repeatedly exposing workers to life-threatening hazards, or from failing to comply with certain workplace safety and health requirements. Last year, OSHA gave regional administrators and area directors increased authority to cite certain violations individually rather than grouping them, which multiplies the penalties. The agency’s stated goal with this update, which replaced guidance for instance-by-instance (IBI) citations that had been in place since 1990, is to “ensure OSHA personnel are applying the full authority of OSHA where increased citations are needed to discourage non-compliance.”
Updated Guidance
Prior to the guidance change, OSHA reserved IBI citations only for willful violations. But under the current guidance, a citation can be issued for each instance of non-compliance – with each one carrying a separate penalty amount – in cases where the agency identifies “high-gravity” serious violations of certain standards. These conditions include hazards related to lockout/tagout, machine guarding, permit-required confined spaces, falls, trenching, respiratory protection, and “cases for other-than-serious violations specific to recordkeeping.”
The updated guidance applies to general industry as well as the agriculture, maritime and construction industries.
Decisions Regarding IBI Citations
OSHA advised its personnel that a decision to issue IBI citations “should normally be based on consideration of one or more” of the following 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 standard 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.
IBI citations may be applied when the text of the relevant standard allows (such as, but not limited to, per machine, location, entry or employee), and when the instances of violation cannot be abated by a single method of abatement, according to OSHA.
In a related memo, OSHA reminded its regional administrators and area directors not to group violations if the evidence allows for separate citations, but to cite them separately to “more effectively encourage employers to comply with the intent of the OSH Act.”
In situations where an existing directive encourages grouping, OSHA said regional administrators and area directors can use their discretion to cite separately. These situations include, but are not limited to, cases in which violations have differing abatement methods; each violative condition may result in death or serious physical harm; and each violative condition exposes workers to a related but different hazard.
The Takeaway for Employers
OSHA’s increased enforcement drives home the need for employers to ensure they are fully compliant with the OSH Act and the areas of focus stated above in particular. Employers found liable of certain violations can expect a greater number of citations and financial penalties and are at increased risk of landing on OSHA’s “Severe Violator” list, which, in addition to causing reputational harm, would result in a higher level of oversight from the agency.
Pappas Grubbs Price PC can assist you with the complex OSHA compliance process and help you assert your rights throughout the OSHA inspection process. Few firms in the United States match our expertise in OSHA matters. Our OSHA attorneys have represented hundreds of clients in OSHA investigations, and we are able to perform 24/7 rapid response on-site coordination with our clients, often arriving before the OSHA inspector. For assistance with your OSHA matter, contact the OSHA attorneys at Pappas Grubbs Price.
