The Occupational Safety and Health Administration (OSHA) increased the maximum penalty amount for serious and other-than-serious violations to $15,625 per violation effective January 15, 2023. Only eleven days later, OSHA announced two new initiatives that could greatly increase the scope and impact of the agency’s enforcement tools against employers.
First, OSHA announced that Regional Administrators and Area Office Directors can consider citing certain types of violations as Instance-by-Instance (IBI) citations for cases where the agency identifies “high-gravity” serious violations of OSHA standards. These conditions include lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching, and cases with other-than-serious violations specific to recordkeeping. IBI citations may be applied when the text of the standard allows (such as per machine, location, entry, or employee) and when the violative instances cannot be abated by a single abatement method. Under IBI, a separate penalty is assessed for each violation. For example, in a fall protection case, OSHA could issue a separate citation for each platform hole through which an employee might fall. Thus, IBI citations result in much larger proposed penalties than non-IBI cases, where OSHA issues one violation for all instances of the same hazard.
OSHA’s application of IBI to “high gravity” serious violations is a significant departure from current OSHA policy, which only considers applying IBI citations in “egregious willful” cases. Egregious willful designations require OSHA to show that the employer demonstrated one or more of the following characteristics:
- Persistently high rates of illness/injury or fatalities
- Extensive history of prior violations
- Intentional disregard of health and safety responsibilities
- Bad faith (a plain indifference to standards or requirements)
In contrast, applying IBI to a “high gravity” serious violation would not require showing that the employer intentionally disregarded health and safety standards or that the employer was plainly indifferent to safety or health requirements. Under the new IBI policy, OSHA could greatly expand IBI citations, which would result in drastically increased proposed penalty amounts.
Second, OSHA will attempt to cite more violations separately rather than “grouping” them, which would result in higher penalty amounts and more total violations for employers. When a source of an identified hazard involves interrelated violations of different standards, the violations can be grouped into a single violation. OSHA commonly groups violations 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 creates 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
Even if the above criteria are met, OSHA’s new initiative encourages enforcement personnel to refrain from grouping violations where there is evidence that work site conditions giving rise to the violations are separate and distinct, or where different conduct gave rise to the violations.
OSHA’s new IBI and grouping initiatives will be effective March 26, 2023. These new policies could be powerful weapons for OSHA’s enforcement efforts. To be prepared, employers should review their current safety and health policies and practices and retrain employees on workplace safety, where needed.
For assistance or questions about this alert, please contact the authors or any member of the Steptoe & Johnson OSHA & Workplace Safety Team.