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OSHA expands ‘instance-by-instance’ citation policy

The U.S. Department of Labor (DOL) has announced enforcement guidance changes that will make it easier for the Occupational Safety and Health Administration (OSHA) to increase penalties against employers who repeatedly expose workers to life-threatening hazards or fail to comply with certain workplace safety and health requirements.

The new guidance will allow OSHA to issue citations for each instance of non-compliance, rather than grouping multiple incidents into one violation, as was previously the practice. The new enforcement guidance will go into effect on March 27, 2023.

IBI vs. group citations

Previously, OSHA would group multiple instances of a violation into a single penalty. For example, a citation for improper machine lockout/tagout would have grouped all missing lockout/tagout systems into one violation. Now, OSHA will have greater leeway to cite each occurrence as an “instance-by-instance” (IBI) citation.

In a news release, the DOL indicated that the new guidance could be used for serious violations “where increased citations are needed to discourage non-compliance.” Under previous guidance, IBI citations only applied to willful egregious violations.

The new guidance covers enforcement activity in general, agriculture, maritime and construction industries. The IBI standard can be applied when the language of the rule supports a citation for each instance of non-compliance. According to the DOL, these conditions include lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching and cases with violations specific to recordkeeping.

In a related memorandum to OSHA administrators, the DOL reiterated that grouping should still be used as appropriate. That includes cases in which:

  • Two or more violations constitute a single hazardous condition
  • There are violations that, considered together, create a substantial probability of death or serious physical harm

Review your practices

As a reminder, employers should keep in mind that the DOL updates their civil penalties annually for inflation.

The new maximum penalties for 2023 are $15,625 for “serious, other-than-serious, and posting requirement violations” and $156,259 for “willful or repeated violations.”

Given the increased financial ramifications under an IBI citation system, employers are advised to review their safety policies and practices to ensure compliance with OSHA regulations.

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