OSHA enforcement change puts teeth in penalties for serious violations

By Larry Stewart02 February 2023

(Photo: Reuters Connect)

The U.S. Department of Labor changed enforcement guidance to allow higher OSHA fines with intent to discourage employers from repeatedly exposing workers to life-threatening hazards.

Occupational Safety and Health Administration regional and area administrators now have discretion to apply “instance-by-instance citations” penalty adjustments in appropriate cases to achieve a deterrent effect. The policy it alters, published in 1990, applied only to willful citations.

In a memorandum on the new guidance, OSHA says it “believes that a more expansive application of instance-by-instance citations will incentivize employers to proactively prevent workplace fatalities and injuries and provide OSHA another tool to use on its mission to ensure safe and healthful working conditions for America’s workforce.”

The so-called IBI citations can now be applied to cases the agency identifies “high-gravity” serious violations of OSHA standards specific to certain conditions where the language of the rule supports a citation for each instance of non-compliance. These conditions include:

  • falls
  • trenching
  • machine guarding
  • permit-required confined space
  • respiratory protection
  • cases with other-than-serious violations specific to recordkeeping
  • lockout/tagout

A decision to use IBI citations should normally be based on consideration of one or more of these 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 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.

Instance-by-instance citations may be applied when the text of the relevant standard allows (such as per machine, location, entry, or employee), and when instances of violation can’t be abated by a single method.

The change is intended to ensure OSHA personnel are applying the full authority of the Occupational Safety and Health Act where increased citations are needed to encourage compliance. The new guidance covers enforcement activity in general industry, agriculture, maritime and construction industries.

The new guidance becomes effective on March 27, 2023. The current policy has been in place since 1990 and applies only to egregious willful citations.

In a second action, OSHA is reminding its Regional Administrators and Area Directors of their authority not to group violations, and instead cite them separately to more effectively encourage employers to comply with the intent of the OSH Act.

“Smart, impactful enforcement means using all the tools available to us when an employer ‘doesn’t get it’ and will respond to only additional deterrence in the form of increased citations and penalties,” explained Assistant Secretary for Occupational Safety and Health Doug Parker. “This 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.”

Delivered directly to your inbox, Scaffold & Access Newsletter features the pick of the breaking news stories, product launches, show reports and more from KHL's world-class editorial team.
Featured Training From Easybook
NYC SST Online Training

The clock is ticking… Construction workers in New York City – have you fulfilled your required Site Safety Training (SST)? Get your SST card online now

Latest Events
SAIA offering select free passes for event
Scaffolding Association providing complimentary access to product demos, exhibits and more
Important updates regarding annual scaffold event
SAIA announces new schedule, hotel’s near sold-out status and more
Off-Highway Research

The gold standard in market research

Off-Highway Research offers a library of more than 200 regularly updated reports, providing forensic detail on key aspects of the construction equipment industry.

Our detailed insights and expert analyses are used by over 500 of the world’s largest and most successful suppliers, manufacturers and distributers, to inform their strategic plans and deliver profitable growth.

Click here to visit our website