On January 26, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued two enforcement memorandums, Application of Instance-by-Instance Penalty Adjustments and Exercising Discretion When Not to Group Violations. These memos seek to provide guidance to Regional and Area Offices regarding “instance-by-instance” (IBI) citations and to reiterate Director and Administrator discretion regarding violation grouping. OSHA believes that the new guidance will incentivize employers to take a proactive approach to worker safety.
Since 1990, OSHA’s longstanding IBI policy has exclusively applied to egregious willful citations, consisting of violations where the employer acted with plain indifference to worker safety or knowingly failed to comply with legal requirements. OSHA’s new memorandum would change the existing policy and expand the application of IBI citations to also include “citations for high-gravity serious violations of OSHA standards specific to falls, trenching, machine guarding, respiratory protection, permit required confined spaces, lockout tagout, and other-than-serious violations of OSHA standards specific to recordkeeping.” The new memo instructs Regional Administrators and Area Directors to consider the following four factors when determining whether IBI citations should be issued:
- 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.
The memorandum further states that “instance-by-instance 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.” By allowing IBI citations to be issued in this manner, OSHA’s new guidance may result in increased fines for employers. The new policy goes into effect in late March 2023.
In addition to issuing new guidance related to IBI citations, OSHA also issued a separate memorandum reiterating existing policy “that allows Regional Administrators and Area Directors discretion to not group violations in appropriate cases.” Specifically, the memo highlights that “enforcement activity may lose its deterrent when citations are grouped” and that grouping violations should be considered when the following circumstances exist:
- 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.
- Grouping two or more other-than-serious violations results in a high gravity other-than serious violation.
According to the memo, grouping should not occur if the evidence allows for separate citations or if the grouping fails to elevate the gravity or classification and its resulting penalty. The reiteration of this policy will result in employers seeing fewer instances in which citations are grouped—likely resulting in increased penalties based on the number of cited instances. Unlike the IBI memo, the reiteration of existing policy on grouping violations takes effect immediately.
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