The Occupational Safety and Health Administration (OSHA) issued a press release detailing changes to an existing policy on the instance-by-instance issuance of citations. According to OSHA, this change is "to make [OSHA's] 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."
“Department of Labor announces enforcement guidance changes to save lives, target employers who put profit over safety; seeks to hold employers to greater account for safety, health failures.” - January 26, 2023, DOL press release
According to the press release, the impact of the change will be limited to specific conditions where the rule's language supports a citation for each instance of noncompliance, which include violations such as "lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching and for cases with other-than-serious violations specific to recordkeeping." According to John Surma of Ogletree Deakins, "...related enforcement memoranda suggest this is not how the practice is expected to be utilized."
Since 1990, the practice of issuing citations on an "instance-by-instance" basis (IBI citations) has been limited to "egregious willful citations." OSHA Instruction CPL 02-00-080, published on October 21, 1990, states that "[t]he large proposed penalties that accompany violation-by-violation citations are not, therefore, primarily punitive nor exclusively directed at individual sites or workplaces; they serve a public policy purpose; namely, to increase the impact of OSHA's limited enforcement resources."
It is important to point out that the instance-by-instance citation policy was rarely used. As John Surma of Ogletree Deakins notes, "When it was used, it was often limited to cases involving serious injury or death where prior serious injury- or death-related inspections were conducted and citations issued. Even more limiting, OSHA often limited this practice to cases where the citations were fully resolved through settlement or adjudication."
The current announcement was related to an enforcement memorandum that included four factors for determining whether instance-by-instance citations should be issued. The factors to be considered include the following:
- The employer has received a willful, repeat, or failure to abate violations 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 under 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 serious hazards.
The enforcement memorandum provided the following guidance:
- 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.
- When an inspection may result in instance-by-instance violations, each instance should be documented thoroughly, e.g., material being processed, equipment, facility conditions, human factors, personal protective equipment, etc.
- The case file must contain a fully documented justification for IBI citations.
In addition to issuing new guidance on when to issue IBI citations, OSHA also issued an enforcement memorandum reminding regional administrators and area directors of their authority not to group violations. The practice of grouping violations typically involves issuing a citation with multiple subparts that carry no penalty but state alternative theories or factual bases to justify the issuance of the citation. Those subparts carry no additional penalty, but they may require abatement of violations beyond the scope of the first listed instance.
That enforcement memorandum set forth the factors that generally are considered when considering when to group citations and then why grouping should not be considered:
Grouping violations should be considered when:
- Two or more serious or other-than-serious violations constitute a single hazardous condition that is overall classified by the most serious item
- Grouping two or more other-than-serious violations considered together creates a substantial probability of death or serious physical harm, or
- Grouping two or more other-than-serious violations result in a high gravity other-than-serious violation.
According to John Surma of Ogletree Deakins: "In cases where grouping does not elevate the gravity or classification and resulting penalty, violations should not be grouped if the evidence allows for separate citations.
Thus, whereas the prior guidance concerning IBI citations was limited to inspections where egregious willful citations were issued, this guidance would apply the practice to even the lowest level of citable violation: that which is considered other-than-serious.
Moreover, the enforcement memorandum on grouping violations extends the program's reach far beyond the application of IBI citation issuance to a limited set of other-than-serious recordkeeping violations to many other categories of other-than-serious violations. Whereas the press release of January 26, 2023, suggests that IBI citations will only be issued concerning OSHA recordkeeping citations, the corresponding enforcement memoranda indicate that it could be used for all other-than-serious citations that meet the stated criteria.
In addition to the significant increase in penalties for OSHA citations that recently became effective, employers are much less likely to see citations grouped—with the consequence of significantly increased penalties multiplied by the number of instances cited. It is fair to assume that the number of cases that will be contested, due to the increased overall penalty exposure, will increase dramatically, depending upon how widespread this practice is utilized and the time to resolution of OSHA citations increased."
Blaine J. Hoffmann has been in the occupational safety & health industry for over 27 years. He is the producer and host of The SafetyPro Podcast and the founder of the SafetyPro Podcast Community Site.