In late January, the U.S. Occupational Safety and Health Administration (OSHA) at the U.S. Department of Labor published new enforcement guidance which will see the agency adopt a much more aggressive stance on serious violations of the Occupational Safety and Health Act (OSH Act) in an effort to improve OSH Act compliance.
OSHA will be stepping up its enforcement activities and will be issuing more civil monetary penalties to employers that fail to ensure a safe working environment for their employees. According to OSHA, the change was made to make its penalties more effective at “stopping employers from repeatedly exposing workers to life-threatening hazards or failing to comply with certain workplace safety and health requirements.”
The guidance for its Regional and Area Offices covers instance-by-instance (IBI) citations for high-gravity serious violations of OSHA standards related to falls, trenching, machine guarding, respiratory protection, permit-required confined spaces, and lockout tagout, as well as other-than-serious violations of OSHA standards related to recordkeeping. The new guidance specifically applies to general industry, agriculture, maritime, and construction industries.
The current OSHA policy has been in place since 1990 and applies to willful citations; however, OSHA believes the application of IBI citations needs to be more expansive in order to incentivize employers to prioritize safety over profit and take action to prevent workplace injuries and fatalities. The more aggressive approach to enforcement will see employers held to greater accountability for health and safety failures in the workplace and will help to improve working conditions for America’s workforce.
The new enforcement guidance takes effect 60 days from the date of issuance, which gives employers until March 27, 2023, to ensure they are fully compliant with their obligations under the OSH Act. From that date, OSHA Regional and Area Offices will be able to apply the full authority of the OSH Act. The decision to use IBI citations will usually be based on one or more of the following factors:
- The employer has received a willful, repeat, or failure to abate the 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) resulting from a serious hazard.
IBI citations can be applied when relevant standards permit, including per machine, location, entry, or employee, and separate penalties will be issued for each violation. Inspectors are encouraged not to group citations, as OSHA believes issuing separate citations will be more effective at encouraging employers to comply with each provision of the OSH Act. Inspectors are, however, permitted to use their discretion and may apply IBI citations to some, but not all, violations identified in the same inspection; however, each violation must be thoroughly documented.
The new approach to enforcement will see employers that repeatedly violate health and safety regulations subjected to more extensive and aggressive inspections, and they will face more substantial financial penalties. The penalties for OSH Act violations were increased by 7.7% on January 17, 2023, per the Inflation Adjustment Act.
The maximum financial penalties for OSH Act violations in 2023 are:
- Willful and Repeated Violations: $156,259 per violation
- Serious or Other-Than-Serious Violations: $15,625 per violation
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