The Occupational Safety and Health Administration has recently announced that it is delivering employers a one-two punch to “make its 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.” Specifically, on January 26, 2023, OSHA issued two new pieces of enforcement guidance that could increase employers’ OSHA liability. Employers are therefore well-advised to spend some time addressing workplace safety hazards and mitigating their OSHA risks now—before OSHA comes knocking.

First, OSHA gave Regional Administrators and Area Office Directors “expanded” authority to issue “Instance-by-Instance,” or IBI, citations to employers for certain “high-gravity” serious violations of OSHA standards where the language of the rule supports citations for each instance of non-compliance. Such rules include those related to lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching, and violations of OSHA recordkeeping standards. IBI citations may be applied per machine, location, entry, employee, or as the Act otherwise provides, and a separate penalty will be assessed for each violation. Regional Administrator and Area Directors will consider the following factors in deciding whether to issue IBI citations:

• An employer’s receipt of a willful, repeat, or failure to abate violation within the past 5 years;

• An employer’s failure to report a fatality, inpatient hospitalization, amputation, or loss of an eye;

• The existence of a fatality or catastrophic injury; and,

• In the case of proposed recordkeeping citations, the alleged violations are related to an injury or illness resulting from a serious hazard.

The new guidance has no effect on the other OSHA initiatives, directives, or emphasis programs that OSHA may use during any particular inspection. It will take effect on March 27, 2023.

Second, OSHA reminded its Regional Administrators and Area Directors that they have broad discretion not to group violations together, but rather to cite employers for each violation separately “in appropriate cases.” Specifically, OSHA may refrain from grouping violations “where there is evidence that worksite conditions giving rise to the violations are separate and distinct, or where different conduct gave rise to the violations.” Even where an existing OSHA directive encourages grouping, OSHA may still issue separate citations where, for example, “violations have differing abatement methods, each violative condition may result in death or serious physical harm, and each violative condition exposes workers to a related but different hazard.”

In issuing these new guidance documents, OSHA seeks to ensure that OSHA personnel are utilizing the full authority of the agency where increased citations are needed to discourage non-compliance—i.e., as a deterrent. That means that Regional Administrators and Area Directors have discretion to depart from the IBI policy where IBI penalty adjustments do not advance the “deterrence goals” of the policy. OSHA will specify its justifications for the exercise of its discretion under both guidance documents in the case file for each particular inspection or investigation.

Employers should also be aware that annual adjustments to OSHA’s civil penalties took effect on January 17, 2023. OSHA’s maximum penalties for serious and other-than-serious violations increased from $14,502 per violation to $15,625 per violation, and the maximum penalties for willful or repeated violations increased from $145,027 per violation to $156,259 per violation. These increases are part of U.S. Department of Labor’s annual adjustments for OSHA specified in the Federal Civil Penalties Inflation Adjustment Act of 2015 (the Inflation Adjustment Act)—again, to “maintain their deterrent effect.”

Combined with the annual adjustments to the civil penalties, OSHA’s new enforcement guidance documents have the practical effect of increasing the amount of penalties and number of violations to which employers may be subject following an inspection or investigation. An employer’s successful navigation of an OSHA inspection and investigation begins well before the inspection or investigation begins. That is, employers should not only take proactive steps to train employees in workplace safety, but also to train managers in the proper way to address safety hazards in the workplace and how to handle OSHA inspections and investigations.

For example, as we have discussed previously on Winstead’s Employer Law Resource Blog, during an OSHA inspection, employers should educate their managers on (at a minimum):

• What legal rights employers have during OSHA inspections and investigations;

• Who to contact and involve in the event OSHA arrives onsite to conduct an inspection or investigation; and,

• Which documentation OSHA is likely to request during routine inspections and investigations, and where it is located.