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OSHA Expands Penalty Policy for First Time Since 1990

Posted on 1/26/2023 by Nick Waldron

An aggressive OSHA penalty policy is expanding to cover a wider range of employer health and safety violations in about 55 days. 

“Instance-by-instance” or "IBI" penalty adjustments are a tool that OSHA enforcement personnel can use to cite and assess penalties for each instance of a workplace health & safety violation separately. Since introducing the policy in 1990, OSHA has used instance-by-instance citations for only the most egregious, willful employer violations.

OSHA now aims to apply IBI penalties to “achieve an additional deterrent effect” for noncompliance with some of the most frequently violated Standards in general industry, maritime, agriculture, and construction industry workplaces, according to an agency memo and a statement from OSHA’s Administrator.

The supercharged enforcement policy may now be applied to “high-gravity serious violations” of requirements related to:

  • Falls
  • Machine guarding
  • Respiratory protection,
  • Permit required confined spaces,
  • Lockout/tagout, and
  • Trenching. 

Other-than-serious violations related to recordkeeping will also be considered for instance-by-instance citations from OSHA. The policy expansion was announced on January 26 and will take effect sixty days later, on March 27, 2023. 

What is an OSHA Instance-By-Instance Citation?

Normally if an OSHA inspector discovers multiple similar violations at a workplace, or a series of violations that contribute to the same unsafe condition, those violations could be grouped together into one citation.

When OSHA applies the instance-by-instance penalty adjustment, those same related violations are cited separately, instead.

Instead of one citation for failure to have lockout/tagout controls when required, OSHA may cite the employer separately for each and every machine that lacks hazardous energy controls.

Instead of one citation for failure to provide respiratory protection training or complete required medical evaluations, OSHA may cite the employer separately for each employee who was not trained and evaluated. The result is more citations, adding up to more civil penaltiespenalties that increase annually to keep pace with inflation

When Will OSHA Use the New Policy?

OSHA officers are encouraged to apply instance-by-instance penalty adjustments to deter employers from endangering their workers or otherwise violating OSHA Standards.

According to OSHA, the decision to utilize IBI citations should normally consider one or more of these factors:

  • 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; or
  • The proposed recordkeeping citations are related to injury or illness(es) that occurred as a result of a serious hazard.

It should be noted that the utilizing the policy is not all-or-nothing—if the employer has multiple violations, OSHA may choose which violations to cite instance-by-instance and which to group.

When issued to employers, instance-by-instance citations will be subject to an extensive review process. If approved, the IBI citations will be issued and OSHA will issue a press release to serve as a further deterrent to noncompliance.

Workplace Safety Training for Frequently Cited Hazards

Beef up your knowledge of the OSHA Standards that may now be subject to instance-by-instance penalties.

Lion’s online OSHA safety training covers key requirements for employers and can help to satisfy employee training requirements found in many of OSHA’s most broadly applicable Standards.

Check out Lion.com/OSHA for a full range of convenient online safety training that includes Lion Membership for ongoing regulatory compliance support.

Try the 10 Hour Training for General Industry workers to get a sense of the most common hazards in general industry, and what OSHA requires from employers.

Tags: 29 CFR, enforcement, osha, safety

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