New Occupational Safety and Health Administration (OSHA) enforcement guidance set to take effect on March 27, 2023, will expand OSHA’s authority to issue instance-by-instance, or “IBI,” citations. Since 1990, OSHA has issued such IBI citations only upon finding “egregious willful violations,” but the new guidance – set forth in OSHA’s January 26, 2023 memorandum – permits OSHA to issue IBI citations for certain “high-gravity” serious violations.
In a related memorandum issued on the same day, OSHA reiterated its intention of avoiding the grouping of violations when possible where grouping “does not elevate the gravity or classification and resulting penalty.”
Those “high-gravity” violations which may now result in IBI citations include (1) lockout/tagout, (2) machine guarding, (3) permit-required confined space, (4) respiratory protection, (5) falls, (6) trenching, and (7) other-than-serious violations with respect to recordkeeping.
These IBI citations may be applied where the text of the applicable standard allows for them, and where a violation cannot be abated by a single method of abatement. The guidance also directs OSHA to “normally” consider one or more of the following factors in deciding to issue IBI citations:
- Whether the employer has received a willful, repeat, or failure to abate violation within the past five years which that classification is current;
- Whether the employer has failed to comply with 29 C.F.R. § 1904.39 reporting requirements for any fatality, inpatient hospitalization, amputation, or loss of an eye;
- Whether the citations are related to a fatality or catastrophe; and
- If the citations are in regards to recordkeeping, whether they are related to an injury or illness that occurred as a result of serious hazard.
However, it appears these factors are not exclusive, as the guidance also provides that IBI citations may be issued in the absence of the above factors if “exigent factors” indicate IBI citations would have a deterrent effect. Justification for the use of IBI in such circumstances must be detailed in the case file.
These new changes are certain to increase the financial ramifications for certain violations. In an effort to avoid potential liability, employers should revisit their workplace safety policies and practices to ensure they are compliant with OSHA regulations.
The new OSHA guidance referenced in this alert can be accessed by clicking the links below:
https://www.osha.gov/memos/2023-01-26/application-of-instance-by-instance-penalty-adjustments
https://www.osha.gov/memos/2023-01-26/exercising-discretion-when-not-to-group-violations
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