New OSHA enforcement guidance targets employers who prioritize profit over safety

Washington — Safety scofflaws may face increased citations and penalties under an OSHA policy set to go into effect in March.

In one of two memos published Jan. 26, OSHA outlines an expansion of scenarios for when it may issue “instance-by-instance citations.” In the other memo, the agency advises regional and area offices of the current policy allowing them to issue citations for each violation, instead of grouping violations.

“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,” OSHA administrator Doug Parker said in a press release. “This is intended to be a targeted strategy for those employers who repeatedly choose to put profits before their employees’ safety, health and well-being. Employers who callously view injured or sickened workers simply as a cost of doing business will face more serious consequences.”

The instance-by-instance citation policy, first published in 1990, currently applies only to “egregious willful violations.”

In its updated policy, OSHA outlines factors to be considered for instance-by-instance citations:

• An employer has received a willful, repeat or failure-to-abate violation within the past five years “where that classification is current.”
• The proposed citations are for a fatality/catastrophe.
• The employer has failed to report a fatality, inpatient hospitalization, amputation or loss of an eye.
• The proposed recordkeeping citations are related to injury or illness(es) that occurred as a result of a serious hazard.

The updated instance-by-instance policy is limited to “high-gravity serious violations” of standards related to falls, trenching, machine guarding, respiratory protection, permit-required confined spaces and lockout/tagout, along with other-than-serious violations specific to recordkeeping.

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.”

The agency “believes that a more expansive application of IBI 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.”

In one of the memos, OSHA reminds regional administrators and area directors they have “discretion to not group violations in appropriate cases to achieve a deterrent effect.” That policy is in the Field Operations Manual (Chapter 4, Section X). 

Additionally, the agency doesn’t have to group violations if those violations occur as a result of worksite conditions or conduct that is “separate and distinct.” Grouping is appropriate, however, when the same abatement measures can correct multiple violations and/or when “substantially similar” actions or conditions lead to the violations.