On January 26, 2023, the Occupational Safety and Health Administration (OSHA) published two memos that will go into effect on March 27, 2023, and allow OSHA to increase proposed fines. The guidance changes outlined in these memos will “save lives [and] target employers who put profit over safety”.
In the Application of Instance-by-Instance Penalty Adjustments memo, OSHA reminds Regional Administrators and Area Directors of the current policy of issuing citations for certain types of violations as “instance-by-instance” (IBI) citations instead of grouping violations. In addition, OSHA states:
“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.”
OSHA’s Exercising Discretion When Not to Group Violations memo reiterates this policy.
These IBI citations can be issued for “high-gravity serious violations” of standards specific to certain conditions across general industry, as well as agriculture, maritime, and construction industries. These include:
- Machine guarding
- Lockout/tagout
- Permit-required confined space
- Respiratory protection
- Falls
- Trenching
- Other-than-serious violations specific to recordkeeping
In practical terms, the new guidance permits OSHA to increase proposed fines. OSHA often grouped various similar noncompliance issues into one violation and issued a single proposed penalty. With this new guidance, OSHA can cite each issue as a separate violation with a proposed penalty. For example, instead of being cited for one combined serious violation of having five machines without adequate machine guarding (with a total proposed penalty of $15,625*), OSHA could issue five citations for these five noncompliance findings, which would have a proposed penalty of $78,125.
*Remember, OSHA penalties were raised in 2022. The new maximum penalty for serious, other-than-serious, and posting requirements is $15,625 per violation. The new maximum penalty for failure to abate (correct safety violation) is $15,625 per day beyond the abatement date. The new maximum penalty for willful or repeated violations is $156,259 per violation (see OSHA Memo dated December 20, 2022).
| 2022 Penalty Adjustments | |
| Type of Violation | Penalty |
| Serious Other-Than-Serious Posting Requirements | $15,625 per violation |
| Failure to Abate | $15,625 per day beyond the abatement date |
| Willful or Repeated | $156,259 per violation |
Questions: If you have questions regarding OSHA’s new enforcement guidelines, please contact Monica Meyer at 724-762-7951.
Source: https://www.osha.gov/news/newsreleases/national/01262023-0
