OSHA Issues More Aggressive Instance-by-Instance Citation Policy

Recently, the Occupational Safety and Health Administration (OSHA) issued targeted enforcement guidance that includes an instance-by-instance citation policy for specific “high-gravity” serious violations. An instance-by-instance citation may apply where the rule's language supports a citation for each instance of non-compliance. Under the authority of the Occupational Safety and Health Act of 1970 (OSH Act), OSHA will use the instance-by-instance citation policy to further discourage egregious workplace safety violations. According to OSHA, this policy will make its penalties more effective in stopping repeat violators. Notable repeat violators include a national discount retailer that was recently fined $2.7 million for willful OSHA violations.

Instance-by-Instance Citation Policy Enforcement

Whereas the previous policy applied only to willfully egregious citations, which required a high standard of proof, new guidance expands criteria for instance-by-instance citations. Under the new enforcement guidance, OSHA Regional Administrators and Area Office Directors will now be able to apply the instance-by-instance citation policy to certain “high-gravity” serious violations. This applies where the text of the relevant standard allows or when instances of violation cannot be abated by a single method. Instances can include violations of the following standards:

• Lockout/tagout (Standard 1910.147);
• Machine guarding (Standard 1910.212);
• Permit-required confined spaces (Standard 1910.146);
• Respiratory protection (Standard 1910.134);
• Falls (under Standard 1910 Subpart D);
• Trenching (under Standard 1926.651); and
• Other-than-serious violations specific to recordkeeping (Standard 1904.7).

Furthermore, OSHA may issue a corresponding instance-by-instance citation for each separate machine, location, entry, or employee. This policy will apply to general industry, agriculture, maritime, and construction industries. OSHA’s new enforcement policy goes into effect on March 27th, 2023. When deciding whether to issue instance-by-instance citations, OSHA will consider the following:

• if an employer has received a willful, repeat, or failure to abate violation within the past five years where that classification is current;
• whether an employer has failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye pursuant to the requirements of 29 CFR 1904.39;
• any citations related to a fatality/catastrophe; and
• if proposed recordkeeping citations are related to an injury or illness resulting from a serious hazard.

Employer Obligations to Prevent Workplace Safety Hazards

In light of OSHA’s return to a more aggressive instance-by-instance citation policy, all employers should ensure they comply with workplace safety laws. Employers need to reassess their workplaces and processes for possible safety hazards. The OSH Act’s General Duty Clause requires that all employers:

1. shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; and
2. shall comply with occupational safety and health standards promulgated under this Act.

To comply with the OSH Act’s General Duty Clause and avoid willful OSHA violations and costly litigation, employers should recognize and fix common workplace hazards. These workplace hazards include all hazards associated with violations covered by OSHA’s targeted instance-by-instance citation policy.

Revisions to OSHA’s Combustible Dust National Emphasis Program

In other news, OSHA revised its Combustible Dust National Emphasis Program (the NEP). The NEP focuses on OSHA inspections of facilities that generate or handle combustible dust. Combustible dust are concentrated particles likely to cause fire, flash fire, deflagration, and explosion hazards. Revisions to the NEP introduce a new approach to locating and inspecting establishments. Finally, OSHA added additional industries to the program, including commercial bakeries; printer ink manufacturers; cut stock, resawing lumber, and planning; leather and hide tanneries; truss manufacturers; and grain and field bean wholesalers.