Dirty Steel-Toe Boots, Episode 15: OSHA’s Expansion of the Instance-by-Instance Policy

In this episode of Dirty Steel-Toe Boots, Phillip Russell is joined by John Surma, to discuss OSHA’s January 26, 2023, press release announcing the agency’s new instance-by-instance citation policy along with two related enforcement memoranda regarding the factors for determining whether instance-by-instance citations should be issued and penalty adjustments. Phillip and John (both of whom are members of Ogletree Deakins’ Workplace Safety and Health Practice Group) discuss the implications of this move away from OSHA’s previous policy whereby the agency had the discretion to group similar citations or exposures—including significantly increased penalties multiplied by the number of instances cited. Our speakers also cover how often the agency will use this new practice and how these changes will affect the number of cases that will be contested due to the increased overall penalty exposure.