There Is a New OSHA Coming to Town — And It Is About to Get Real (Expensive)

Since the Biden Administration assumed control in 2021, the Department of Labor (DOL) has been increasingly focused on enforcement. That is particularly true when it comes to safety and health in the workplace, as enforced by the Occupational Safety and Health Administration (OSHA). Last month (on January 26, 2023), OSHA issued two memoranda that are taking enforcement to an entirely higher level.

Both memoranda were issued by OSHA’s Directorate for Enforcement Programs. According to the DOL, OSHA “issued [the] new enforcement guidance to make its penalties more effective in stopping employers from repeatedly exposing workers to life-threatening hazards or failing to comply with certain workplace safety and health requirements.”

The first memorandum — Exercising Discretion When Not to Group Violations — states that it is “intended to reiterate existing policy that allows Regional Administrators and Area Directors discretion to not group violations in appropriate cases to achieve a deterrent effect.” Here’s what that lengthy sentence means:  essentially, the policy provides OSHA with flexibility in enforcement by allowing individual violations to be addressed on their own, rather than being grouped together with other violations that may have occurred simultaneously. By not grouping violations, OSHA can better address specific issues and ensure that individual violations are not overlooked or treated as part of a larger problem.

This individualized approach to violations also allows for enhanced enforcement and can help to deter future violations by significantly upping the consequences of non-compliance; i.e., there will now be more cited violations on an individual basis, which will have the effect of separate penalty assessments, thereby further increasing overall penalty exposure.

The second memorandum — Application of Instance-by-Instance Penalty Adjustment — addresses how OSHA will apply penalty adjustments when citing violations of safety standards. The memorandum is intended to authorize and provide guidance to Regional and Area OSHA offices for instance-by-instance (IBI) citations. IBI citations allow for far greater penalty assessment, as OSHA can now include a penalty for each instance of an alleged violation: for example, if more than one machine was discovered during the same inspection missing appropriate guarding under the OSH Act, penalties now may be issued for each machine. 

According to the Directorate on Enforcement, IBI citations can be used 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. Regional Administrators and Area Directors have discretion to apply IBI penalty adjustments in appropriate cases to achieve a deterrent effect.

OSHA will use the following factors when deciding on whether to use IBI citations in any particular instance:

• The employer had been previously cited with a willful, repeat, or failure to abate violation, at any point during the prior five-year period;
• The employer failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye as required under applicable OSHA regulations;
• The proposed citations are related to a fatality/catastrophe; and,
• If a recordkeeping violation, then if the violation is related to an injury or illness that occurred as a result of a serious hazard.

Overall, the two memoranda represent a significant shift in how OSHA will approach enforcement in the coming years. The immediate effect will be significantly increased penalty assessments by the agency; six-figure penalty assessments are likely to become for more common. 

And, according to OSHA’s Assistant Secretary, Doug Parker, the change 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.”