Economy slumps – OSHA wants to line their pockets with your money
OSHA is at it again. The economy is reeling and the best thing OSHA can think to do is increase their opportunities for penalties. On January 26, 2023, OSHA posted a news release indicating that they were making changes to their enforcement policies. This change allows for citations on an instance-by-instance basis. This will add up to huge fines for any employer that happens to find itself in the OSHA spotlight.
The safety programs they will look at
OSHA will be focusing in on several key safety and health policies. These include lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching, and cases with other-than-serious violations specific to recordkeeping. I want you to take note of the last program and that is other than serious violations specific to record-keeping. The whole point of the instance-by-instance citations is to look at gravely serious safety and health programs.
Record-keeping is not serious or immediately dangerous to your life and health. But this is where the most errors occur. And this is where OSHA will line their pockets. Just think about an error that you make on your OSHA 300 log. Let’s say you have the incorrect number of days in the hospital. And the incorrect number of days away from work. Both of those even though one line item will cost you twice the citations. if that citation happens to be a needlestick or other blood-borne pathogen issue you will have to make sure every piece of paper that is attached to that injury is completed perfectly.
You’ve got 60 days
You’ve got 60 days to get your house in order. I just want to note that we look at a lot of safety and health programs and do a lot of policy development and review. These programs that are listed above are the most notorious programs for failures. And I’ll highlight a couple for you.
The first is that the confined space listing in a confined space program is rarely up-to-date if it even exists. The 2nd is that lockout tag-out procedures do not exist in the policies. The 3rd is that the confined space permit system does not include forms or details necessary to enter permit-required confined spaces. And lastly, training around these programs hasn’t occurred recently if at all.
I’ve included the news release below as well as some of the attachments for your review. I would say that you should get busy as quickly as possible on training and reviewing your policies.
The News Release
January 26, 2023
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
WASHINGTON – The U.S. Department of Labor announced that its Occupational Safety and Health Administration has issued new enforcement guidance 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.
OSHA Regional Administrators and Area Office Directors now have the authority to cite certain types of violations as “instance-by-instance citations” for cases where the agency identifies “high-gravity” serious violations of OSHA standards specific to certain conditions where the language of the rule supports a citation for each instance of non-compliance. These conditions include lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching and for cases with other-than-serious violations specific to recordkeeping.
The change is intended to ensure OSHA personnel are applying the full authority of the Occupational Safety and Health Act where increased citations are needed to discourage non-compliance. The new guidance covers enforcement activity in general industry, agriculture, maritime and construction industries, and becomes effective 60 days from Jan. 26, 2023. The current policy has been in place since 1990 and applies only to egregious willful citations.
In a second action, OSHA is reminding its Regional Administrators and Area Directors of their authority not to group violations, and instead cite them separately to more effectively encourage employers to comply with the intent of the OSH Act.
“Smart, impactful enforcement means using all the tools available to us when an employer ‘doesn’t get it’ and will respond to only additional deterrence in the form of increased citations and penalties,” explained Assistant Secretary for Occupational Safety and Health Doug Parker. “This is intended to be a targeted strategy for those employers who repeatedly choose to put profits before their employees’ safety, health and wellbeing. Employers who callously view injured or sickened workers simply as a cost of doing business will face more serious consequences.”
These changes in enforcement guidance are important enforcement tools to help deter employers from disregarding their responsibilities to protect workers and ensure compliance with OSHA standards and regulations.
Existing guidance on instance-by-instance citations are outlined in the OSHA Field Operations Manual, and CPL 02-00-080, “Handling of Cases to be Proposed for Violation-by-Violation Penalties.”
# # #
Media Contacts:
Victoria Godinez, 202-693-4667, godinez.victoria.c@dol.gov
Amanda McClure, 202-693-4675, mcclure.amanda.c@dol.gov
Release Number: 23-146-NAT
What is instance by instance?
January 26, 2023
- MEMORANDUM FOR:
- REGIONAL ADMINISTRATORS
STATE PLAN DESIGNEES - THROUGH:
- AMANDA L. EDENS
Deputy Assistant Secretary - FROM:
- KIMBERLY A. STILLE, Director
Directorate of Enforcement ProgramsSCOTT C. KETCHAM, Director
Directorate of Construction - SUBJECT:
- Application of Instance-by-Instance Penalty Adjustments
The purpose of this memorandum is to provide guidance to Regional and Area Offices when issuing Instance-By-Instance (IBI) citations for high-gravity serious violations of OSHA standards specific to falls, trenching, machine guarding, respiratory protection, permit required confined spaces, lockout tagout, and other-than-serious violations of OSHA standards specific to recordkeeping. Regional Administrators and Area Directors have discretion to apply IBI penalty adjustments in appropriate cases to achieve a deterrent effect. This new Instance-by-Instance Penalty Adjustments policy outlined in this memorandum will become effective 60 days from the date of issuance of this memorandum.
- Background
This memorandum provides guidance concerning the expanded application of instance-by-instance (IBI) citations. Current IBI policy, published in 1990, applies only to willful citations. OSHA believes that a more expansive application of IBI will incentivize employers to proactively prevent workplace fatalities and injuries and provide OSHA another tool to use on its mission to ensure safe and healthful working conditions for America’s workforce.
- Scope
The scope of this guidance is limited to high-gravity serious violations specific to falls, trenching, machine guarding, respiratory protection, permit required confined space, lockout tagout, and other-than-serious violations specific to recordkeeping. The scope applies to general industry, agriculture, maritime, and construction industries.
- Enforcement Guidance
The guidance provided is part of OSHA’s enforcement policy and shall generally be applied for the purpose of additional deterrence to employers meeting the criteria set forth below. Regional Administrators and Area Directors can exercise discretion to depart from this IBI policy in cases where IBI penalty adjustments do not advance the deterrent goal of this memo.
A decision to use instance-by-instance citations should normally be based on consideration of one or more of the factors listed below. The factors to be considered include:
- 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.
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.
A separate penalty shall be assessed for each violation and the adjustment factors shall be applied in accordance with the FOM, Chapter 6. Recordkeeping violations must be processed and categorized following guidance in OSHA Directive CPL 02-00-080, Handling of Cases To Be Proposed for Violation-By-Violation Penalties. Area Directors have discretion to apply IBI citations to some, but not all violations resulting from the same inspection. Additionally, the use of IBI does not preclude the use of other OSHA initiatives, directives, or emphasis programs within the same inspection.
- Enforcement Guidance
Following the Regional Administrator’s review of proposed IBI citations, the proposed citations shall undergo additional pre-issuance review as follows:
- The Regional Office of the Solicitor (RSOL) should be consulted prior to issuance of any IBI citations.
- If the proposed total penalty exceeds the threshold for National Office approval as defined in the Processing Significant and Novel Enforcement Cases memo, the process for National Office approval outlined in that memo shall be followed. The IBI citations should be thoroughly justified in the body of the Significant Case memo, comparable to willful citations documentation.
All inspections proposing IBI serious/OTS citations will be coded as “N 13 IBI Serious/OTS” under the Additional Codes in OIS. The Area Office shall ensure that proper OIS coding is complete at the time of issuance.
Following issuance of IBI citations, OSHA will issue a press release for the purpose of furthering deterrence.