The Occupational Safety and Health Administration (OSHA) started the new year with two announcements that should put employers on notice that enforcement will expand in 2023.
On January 26, 2023, OSHA issued new enforcement guidance. Under the new guidance, OSHA will look to issue more citations – each one carrying separate penalty amounts – during a single inspection.
The new policy provides that “instance-by-instance” (IBI) citations will be issued in cases that are deemed “high gravity” by the administration. In their news release, OSHA stated that these instances include, ”lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching and for cases with other-than-serious violations specific to recordkeeping.”
Additionally, the guidance directed agency personnel not to group violations and instead cite them separately to encourage employer compliance with the law.
Practically speaking, the new guidance means an increase in penalties. In the past, OSHA often grouped several incidents into one violation and issued a single penalty. Under the new guidance, OSHA can cite each incident as a separate violation with a separate penalty for each violation. For example, instead of being cited for one combined serious violation related to a machine without guarding, OSHA can now issue a separate violation and penalty for each machine found without guarding.
The enforcement guidance changes go into effect on March 27, 2023.
The new enforcement guidance has been proposed as an interim final rule resulting in the public not being able to comment on it until it is in effect 60 days after January 26, 2023. The public will be able to make comments on the new rules once they are in effect.
Penalties Increased
In January, OSHA also announced that it had increased penalties for inflation. The increases take affect for penalties issued after January 15, 2023. The new maximum penalty for serious, other-than-serious, and posting requirements is $15,625 per violation. The new maximum penalty for failure to abate (correct safety violation) is $15,625 per day beyond the abatement date. The new maximum penalty for willful or repeated violations is $156,259 per violation.
Employers Should Prepare
With this sharpened enforcement policy, employers should brush up on OSHA safety standards, and retain counsel as soon as possible if served with a subpoena from OSHA. Employers should review OSHA safety standards or consult with a labor attorney licensed in their state to mitigate any future costly litigation.
Employers can also download NFIB’s Guide to OSHA Inspections and can reach out to the NFIB Small Business Legal Center at [email protected] with any additional questions.
