Late on January 26, 2023, the Occupational Safety and Health Administration (OSHA) issued a press release concerning a significant change in long-standing policy related to instance-by-instance issuance of citations that will become effective in sixty days and radically alter the landscape of certain inspections. The stated purpose of the policy 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.”
The press release indicates that the impact of the change will be limited to certain conditions where the language of the rule supports a citation for each instance of noncompliance. These conditions and this language 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,” but related enforcement memoranda suggest this is not how the practice is expected to be utilized.
The practice of issuing citations on an “instance-by-instance” basis (IBI citations) has, since 1990, been limited to “egregious willful citations.” OSHA Instruction CPL 02-00-080, issued 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.” The January 26, 2023, press release was issued with the title that stated its purpose: “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.”
OSHA Instruction CPL 02-00-080 continued and set forth the criteria for application of the policy, which includes the following:
(1) The employer is found in violation of an OSHA requirement:
(a) Of which she/he has actual knowledge at the time of the violation. Such knowledge may be demonstrated through previous citation history, accident experience, widely publicized agency enforcement, direct evidence of specific recognized jobsite hazards or other appropriate factors; and
(b) Intentionally, through conscious, voluntary action or inaction, having made no reasonable effort to eliminate the known violation.
(2) The violations resulted in worker fatalities, a worksite catastrophe, or a large number of injuries or illnesses.
(3) The violations resulted in persistently high rates of worker injuries or illnesses.
(4) The employer has an extensive history of prior violations of the Act.
(5) The employer has intentionally disregarded its safety and health responsibilities.
(6) The employer’s conduct taken as a whole amounts to clear bad faith in the performance of his/her duties under the Act.
(7) The employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that might be in place.
As a practical matter, the instance-by-instance citation policy was rarely used. 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, whether through settlement or adjudication.
The current announcement was tied 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 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) that occurred as a result of a serious hazard.
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., type of material being processed, equipment, facility conditions, human factors, personal protective equipment, etc. The case file must contain 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 normally 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 create a substantial probability of death or serious physical harm, or
- grouping two or more other-than-serious violations results in a high gravity other-than serious violation.
In cases where grouping does not elevate the gravity or classification and resulting penalty, then 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 reach of the program far beyond application of IBI citation issuance to a limited set of other-than-serious recordkeeping violations to many other categories of other-than-serious violation. Whereas the press release of January 26, 2023, suggests that IBI citations will only be issued with respect to OSHA recordkeeping citations, the corresponding enforcement memoranda indicate that it could be used for all other-than-serious citations that meet the stated criteria.
What are the takeaways for employers regarding these actions by OSHA? Simply put, 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.