Get Ready For More Instance-By-Instance Citations

The Occupational Safety and Health Administration (OSHA) recently announced a significant change in its Instance-By-Instance (IBI) citation policy. In the instructions to regional and area offices, published on January 26, 2023, OSHA can now issue IBI citations if any one of the following is present:

• 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 agency is targeting “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.”

This new IBI policy becomes effective on March 27, 2023 —60 days after the change was announced. This heightened enforcement guidance does not bode well for employers.

“Other-Than-Serious” IBI violations

The previous policy, in place since 1990, limited IBI citations to “egregious and willful” violations. The new policy encourages compliance officers to apply the practice for “other-than-serious” violations under certain conditions.

In a separate memo published the same day, the agency reminded regional administrators and area office directors to use their authority not to group violations and set forth the factors to consider when making this decision.

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 creates a substantial probability of death or serious physical harm, or
• grouping two or more other-than-serious violations result in a high gravity other-than-serious violation.

Permission to multiply

The memo further states: “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.” This means that employers could face more per machine, per location, per entry, and per employee citations in the months ahead — with an exponentially increased penalty exposure.

It’s safe to assume that if this citation practice becomes widespread, OSHA attorneys will be extremely busy assisting employers in contesting them.

Assess vulnerability

Targeted employers should prepare for more frequent and aggressive inspections and higher penalties for violations. Employers should evaluate their vulnerability and take steps to minimize their penalty exposure.

Reviewing, updating, and otherwise having all OSHA-related illness and injury records readily available is one of the most important things an employer can do to keep OSHA happy. If applicable, producing any documentation associated with correcting past violations — and records of any safety-related disciplinary actions — can be critical during an inspection, as well as when contesting violations.

If you have questions or concerns about your increased penalty exposure as a result of this change in IBI policy, or if you have received a citation for any reason, don’t hesitate to contact Orr & Reno for assistance.

About the Author: James Laboe

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