Accordingly, employers should take inventory of the scope and frequency of their facility/premises audits and plan to adjust as needed to ensure compliance and avoid substantially increased penalties.

On January 26, 2023, the U.S. Department of Labor announced that its Occupational Safety and Health Administration (OSHA) had issued new enforcement guidance giving authority to OSHA regional administrators and area office directors to cite certain types of safety violations as “instance-by-instance citations” (IBI) for cases the agency identifies as “high-gravity,” serious violations. These conditions include lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls and trenching. In addition, cases with “other-than-serious violations” that are specific to recordkeeping related to injury or illness(es) that occurred as a result of a serious hazard are included in the guidance.

The guidance also affords administrators and directors full discretion to apply IBI penalty adjustments in appropriate cases to deter employers from repeatedly exposing workers to life-threatening hazards or failing to comply with certain workplace safety and health requirements.

This new IBI penalty adjustment policy, effective March 27, 2023, covers enforcement activity in general industry, agriculture, maritime and construction industries. Accordingly, employers should take inventory of the scope and frequency of their facility/premises audits and plan to adjust as needed to ensure compliance and avoid substantially increased penalties.

OSHA’s Current IBI Policy Applies Only to Willful Citations

OSHA’s current IBI policy, published in 1990, applies only to egregious willful citations. Under the current policy, the agency’s determination of “willfulness” is based upon seven, multi-part queries:

1. What were the firm’s guidelines or policies relating to safety and health in general and, in particular, to the subject violation (e.g., recordkeeping, hazard communication, machine guarding, use of respirators, maintenance of pressure vessels)? What was the local facility’s safety and health program?
2. Do corporate or plant policies or guidelines differ from OSHA requirements or other relevant standards, regulations or guidelines? What is management’s explanation for differences between its policies and OSHA’s requirements?
3. Did responsible persons actually know of the requirements of the relevant OSHA standards, guidelines or instructions? Who were they and how did such persons come to know OSHA’s requirements?
4.  Did responsible persons actually know of the existing hazardous conditions? Did they recognize the hazardous nature of these conditions? If so, who were these persons and for how long had they recognized the hazard?
5. How did the employer explain the existence of the violations? Did the employer claim that any steps to abate had already been taken? Was any documentation available to support such previous action?
6. Had the company done anything toward identifying, evaluating or correcting the hazardous conditions prior to OSHA’s visit? Was an abatement program in place or had one been proposed? What progress had been made toward implementing it? Does it seem adequate? What was the company’s explanation as to why more progress had not been made?
7. Are any memoranda, letters, minutes, accident reports or other documents addressing the hazards, violations or corrective measures available? Describe them. Did management admit knowledge of these documents? Had management responded in any to them? How?

The new enforcement guidance aims to expand the applicability of IBI citations altogether, instead of confining the issuance of such citations to an extensive test of “willfulness” alone.

OSHA’s New Enforcement Guidance Expands the Application of IBI Citations

OSHA’s new guidance not only expands the application of IBI citations to “willful, repeat, or failure to abate violations,” but places full discretion in the hands of its regional administrators and area directors to depart from its new IBI enforcement guidance factors to ensure penalty adjustments have the maximum effect.

Under the new guidance, a decision to use IBI citations should normally be based on consideration of one or more of the following factors:

• 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.

Regional administrators and area directors may exercise discretion to depart from this IBI policy in cases where the agency determines the IBI penalty adjustments do not advance the deterrent goal of this new guidance. In effect, this new guidance gives OSHA administrators and directors free rein to decide what citation approach, e.g., grouping or IBI, will inflict the greatest penalty (i.e., “deterrent effect”) on the noncompliant employer.

“Grouped” Versus “Instance-by-Instance” Citation Penalties

The new guidance secondarily functions as a reminder, if not encouragement, to regional administrators and area directors of their authority not to group violations, and to instead cite them separately to more effectively encourage employer compliance with the intent of the Occupational Safety and Health Act.

This means a big (expensive) deal when it comes to penalties.

The key difference between a “grouped” approach to citations, as opposed to IBI citations, means the difference of one overall “group” penalty for multiple, related violations, versus multiple penalties for each instance of a violation—regardless of similarity or relation.

Combined or group violations will be considered as one violation with one gravity-based penalty. Where a citation consists of multiple instances or grouped violations, the overall classification and associated penalty shall normally be based on the most serious item. In other words, a group citation may include multiple instances, but if issued as a group or combined citation, they are classified as one and a single penalty will be assessed based upon the seriousness of that group classification.

For example, where a group citation includes four instances of a violation, and one of those instances is classified as “willful serious,” the entire grouping will be based upon the most serious item and a single penalty will be assessed,  for all four instances.

In contrast, for IBI citations, a separate penalty is assessed for each violation, also based on the adjustment factors above. For example, if a regional administrator reviews and approves the issuance of four IBI citations, and the citations are for multiple “willful” or “repeat” serious violations, this could mean a penalty assessment of $18,000 per violation, for a total of $72,000. These numbers are merely examples, but illustrate the substantial disparity between the method by which OSHA decides to issue high-gravity serious citations going forward under this new guidance. OSHA administrators and directors are now fully equipped to wield extreme and increased force on the penalties front for these types of violations.

This also means a likely increase in litigation costs where an employer opts to appeal IBI citations, due to the individualization of the citations as opposed to a grouping. Appeals proceedings are likely to be lengthier and require the presentation of more narrowly tailored evidence for each citation.

Employers Should Assess Current Risks and Increase Facility Audits

In light of this guidance, employers in the affected industries should conduct a risk assessment of the above-listed conditions subject to OSHA standards and review, and increase the frequency and scope of periodic audits of these conditions.

Additional proactive measures that employers should take include documenting thoroughly, e.g., the type of material being processed, equipment, facility conditions, human factors, personal protective equipment, etc. This way, the employer’s case file contains fully documented, periodic proof to refute or contradict any potential IBI citation evidence presented by OSHA on these same inspection factors.

For More Information

If you have any questions about this Alert, please contact Joseph A. Ciucci, Adam Keating, Christopher D. Kanne, Nicolette J. Zulli, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.