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OSHA Expands Reinforcement Against Serious Safety Violators

February 21, 2023by Barbara Flynn0

By Leah Shepherd

Employers with severe workplace safety hazards may soon face a greater number of citations—and penalties.

The U.S. Occupational Safety and Health Administration (OSHA) released new enforcement guidance on Jan. 26 that expands how it applies instance-by-instance citations for serious violations of the Occupational Safety and Health Act (OSH Act). The agency is stepping up enforcement to strengthen compliance and help prevent workplace injuries and fatalities.

OSHA regional administrators and area office directors will gain the authority to bring instance-by-instance citations for some egregious violations of OSHA standards, instead of grouping them together. OSHA has also broadened the list of situations that may result in instance-by-instance citations to include lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls and trenching.

The new guidance will take effect March 27 and cover general industry, agriculture, and the maritime and construction industries.

It will apply to high-gravity serious violations, meaning situations involving death or permanent, irreversible injury or illness. The gravity of a violation can be low, moderate or high, based on the severity of the injury or illness that could result, as well as the likelihood that it could happen.

“Smart, impactful enforcement means using all the tools available to us when an employer doesn’t get it and will respond to only additional deterrence in the form of increased citations and penalties,” said Doug Parker, assistant secretary of Labor for occupational safety and health. “This is intended to be a targeted strategy for those employers who repeatedly choose to put profits before their employees’ safety, health and well-being. Employers who callously view injured or sickened workers simply as a cost of doing business will face more serious consequences.”

The number of OSHA inspectors grew by 19 percent in 2022, noted John Ho, an attorney with Cozen O’Connor in New York City.

“Employers should certainly expect more knocks on the door and that compliance officers will be looking to use increased penalties as a more aggressive compliance tool,” he said. “Given the significant penalties that might be assessed under these enforcement initiatives, employers may also want to consider using resources to retain an independent third-party safety consultant to conduct an audit.”

Background on Instance-by-Instance vs. Group Citations

In 1990, OSHA adopted guidance for imposing penalties for each instance of willful violation of record-keeping regulations, safety and health standards, or the OSH Act’s General Duty Clause, which requires employers to provide a workplace free of serious hazards. “The resulting large aggregate penalties are part of a compliance strategy [that] improves the efficiency and effectiveness of the agency and conserves its limited resources,” the guidance states.

The updated guidance says a decision to use instance-by-instance citations should be based on one or more of these factors:

  • The employer has had willful or repeat violations or failed to fix a violation within the past five years.
  • The employer has failed to report a fatality, inpatient hospitalization, amputation or loss of an eye.
  • The proposed citations are related to a fatality/catastrophe.
  • The proposed record-keeping citations are related to injuries or illnesses that occurred as a result of a serious hazard.

Instance-by-instance citations may be given when the different violations cannot be fixed by a single method. Grouping violations together may be appropriate when the same measures can correct multiple violations or when substantially similar actions or conditions caused the violations.

Culture of Safety Remains Vital

Even though regulations have evolved over the decades, what hasn’t changed is employers’ obligation to keep workers safe.

“It is not enough to just have written safety and health policies and procedures, although having them is obviously important. Businesses really need to create a strong safety culture where employees are invested in safety,” Ho said. “Such a culture needs to start with senior management’s commitment to prioritize safety and health issues. That means investing time, money and other resources to ensuring a safe working environment. Employees need to understand they can freely speak up about safety and health matters, and not only will such concerns be taken seriously, but not following applicable policies and procedures will result in discipline.”

Employers don’t always have to fire a worker who fails to follow a safety protocol. However, “employees need to know that violations won’t be overlooked, and appropriate discipline will be implemented. Creating such a [company] culture cannot be done overnight and is understandably challenging,” Ho said.

Barbara Flynn

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