OSHA Beefs Up Penalties And Issues New Enforcement Guidance – Health & Safety

OSHA annually adjusts its penalties for inflation. The
adjustments are effective for penalties assessed 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.

On January 26, 2023, OSHA announced a new enforcement guidance.
OSHA Regional Administrators and Area Directors now will have the
authority to cite certain types of violations as
“instance-by-instance” (IBI) citations. These IBI
citations can be issued for “high-gravity” serious
violations of standards specific to certain conditions. These
include lockout/tagout, machine guarding, permit-required confined
space, respiratory protection, falls, trenching and cases with
other-than-serious violations specific to recordkeeping. The new
guidance covers enforcement activity in general industry,
agriculture, maritime and construction industries. Previously, IBI
citations applied only to willful citations. The new guidance
becomes effective 60 days from January 26, 2023.

In practical terms, the new guidance permits OSHA to increase
proposed fines. In the past, OSHA often has grouped several
incidents into one violation and issued a single proposed penalty.
Now OSHA is authorized to cite each incident as a separate
violation with a proposed penalty. For instance, instead of being
cited for one combined serious violation with a proposed penalty of
$15,625, OSHA can issue three citations for three incidents (e.g.,
three machines without machine guarding) with a proposed penalty of
$46,875. OSHA will issue a press release after issuing IBI
citations against an employer.

Employers’ Bottom Line

The Biden administration is placing greater emphasis on
enforcement of workplace safety. The new enforcement guidance is
the latest tool to increase costs for employers that do not comply
with OSHA standards. Employers likewise should place greater
emphasis on ensuring compliance with OSHA standards.

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