OSHA Updates Guidance on Citations

The Occupational Safety & Health Administration’s (OSHA) mission is to ensure that employees work in a safe and healthful environment by setting and enforcing regulatory standards and providing training, outreach, and assistance. To help accomplish this mission, OSHA creates regulatory agendas semi-annually for rule-making sessions to address what the agency perceives as the most dangerous and/or common hazards that employees encounter.

As a result of one of these recent regulatory sessions, OSHA announced new enforcement guidance aimed at making its penalties more effective in stopping employers from repeatedly exposing workers to life-threatening hazards or failing to comply with certain workplace safety and health requirements. Here is a summary of this new guidance:

Instance-by-Instance Citations

OSHA regional offices now have the authority to cite certain violations as “instance-by-instance citations” for cases where the agency identifies “high-gravity” serious violations, such as lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, and trenching. It also applies to cases with “other-than-serious” violations specific to recordkeeping.

Employers should note that part of this updated guidance reiterates that OSHA field officers should not group citations. An example of grouping citations is when a compliance officer only issues one citation to an employer for not having a required respirator program instead of a citation for each missing program element. OSHA states that this amended practice will encourage employers to comply more thoroughly with regulations. The new enforcement guidance becomes effective on March 27, 2023.

Increased Penalties

The US Department of Labor (DOL) published its yearly increase to the maximum civil penalties that OSHA issues with citations resulting from workplace safety and health inspections. The increased penalties are effective immediately but still vary greatly depending on the severity of the violation and other factors, such as headcount and whether the violation was “willful” or “repeated.” Although it is still possible to get a citation with a $0 penalty for an “other-than-serious” violation, “serious” and “other-than-serious” violations increased from $14,502 to $15,625 per violation. The maximum penalty for “willful” or “repeated” increased from $145,027 to $156,259.

Employers should also be aware that civil penalties will continue to be adjusted annually due to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. This law was introduced to adjust penalty amounts for inflation without needing to provide notice or the opportunity for public comment to continue to deter safety violations.

What Does This Mean for State-Run Safety Agencies?

The updated OSHA guidance doesn’t affect all employers yet. Twenty-two states have their own state-run safety agencies that must meet or exceed OSHA standards. These agencies typically have six months from OSHA-effective dates to revise their state programs to align with federal regulations and have penalty amounts within 25% of the federal averages. Washington’s Department of Labor & Industries (L&I) and Oregon OSHA (OR-OSHA) have yet to comment on coming program changes. Archbright will continue to monitor these states for updated citation guidance and penalty increases. Employers interested in safety inspection support can contact Safety@Archbright.com or a Safety Advisor through mozzo chat.