By Eric J. Conn, a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Practice Group, and Darius Rohani-Shukla, an associate in the firm’s Labor and Employment practice. They both write regularly for the firm’s OSHA Defense Report blog.
On January 26, 2023, OSHA revealed to the public two enforcement memoranda that it had issued to its field offices and all of the State OSH Plans that will substantially sharpen OSHA’s enforcement teeth and increase the pain OSHA can inflict on employers across the country. Specifically, OSHA dramatically expanded the circumstances when it can issue “instance-by-instance” citations to employers, and also discouraged the grouping of similar citations under a single penalty.
Instance-by-Instance (IBI), or per-instance enforcement, is one of OSHA’s most powerful tools to ratchet up civil penalties. It is essentially a multiplier for OSHA citations based on a “unit-of-violation” set by OSHA standards that require individualized duties, i.e., train each employee, guard each machine, require a hard hat for each employee, etc. As a result, rather than a single citation with a single penalty for an employers’ failure to ensure that all employees wear a hard hat at a construction site, per-instance enforcement allows OSHA to instead issue ten citations with ten separate penalties for each of the ten employees observed without a hard hat.
Historical Per-Instance Enforcement
OSHA’s IBI enforcement policy was first memorialized in 1990 in an enforcement directive called “Handling of Cases to be Proposed for Violation-By-Violation Penalties.” This policy came to be known as OSHA’s Egregious Enforcement Policy because OSHA’s policy was to use it only in circumstances involving conduct found by OSHA to be worse than just willful. Specifically, under this long-standing willful-plus standard, OSHA issued per-instance citations when violations were found both to be willful and to meet one of the following criteria:
- The violations resulted in a fatality or multiple hospitalizations.
- The violations resulted in persistently high rates of worker injuries.
- The employer had an extensive history of prior OSHA violations.
- The employer’s conduct taken as a whole amounted to clear bad faith.
- The current inspection revealed so many violations as to significantly undermine the effectiveness of its safety program.
OSHA’s historical per-instance enforcement was also limited to violations of certain types of OSHA standards. Specifically, OSHA could only issue per-instance citations if the standard being cited uses regulatory text that requires or prohibits individual acts or establishes separate compliance duties, rather than establishing or barring a general course of action. That is dictated by statute and caselaw.
Standards that set an individualized duty are most often seen in personal protective equipment (PPE) standards (e.g., 1910.133(a)(1) –“The employer shall ensure that each affected employee uses appropriate eye or face protection when exposed to eye or face hazards….”) or training sub-provisions within any of the hazard-specific standards (e.g., 1910.147(c)(7)(i)(A) – “Each authorized employee shall receive training in the recognition of applicable hazardous energy sources….). The “units-of-violation” for these standards is “per employee,” i.e., a separate duty owed to each individual employee, and therefore, separate citations are permitted per-employee to whom the employer failed to meet the duty. OSHA even promulgated regulations to emphasize the individualized nature of the duties in these types of standards:
- 1910.9(a): Standards requiring Employer to provide PPE … impose a separate compliance duty with respect to each covered employee… and each failure to provide PPE to an employee may be a separate violation.
- 1910.9(b): Standards requiring that employees receive training or that Employer train employees…or implement a training program, impose a separate compliance duty with respect to each covered employee. Employer must train each affected employee as required, and each failure to train an employee may be a separate violation.
But there are other standards that set other individual compliance duties with different units-of-violation. For example, OSHA’s Lockout-Tagout standard requires that “Lockout or tagout devices shall be affixed to each energy isolating device by authorized employees (1910.147(d)(4)(i)), and the machine guarding standards require that “Guards shall be affixed to the machine where possible….” (1910.212(a)(2)). In those situations, if the other elements of OSHA’s egregious enforcement policy are satisfied, OSHA could issue citations on a per-machine basis.
Conversely, standards that set a generalized duty tend to use verbiage denoting a plural subject or broad duties across the workplace. Below is a good example of a generalized duty and an individualized duty within two provisions of the same standard (the respiratory protection standard):
- A Generalized Duty: 134(d): Selection of respirators.This paragraph requires the employer to evaluate respiratory hazard(s) in the workplace, identify relevant workplace and user factors, and base respirator selection on these factors.
- An Individualized Duty: 134(a)(2): A respirator shall be provided to each employee when such equipment is necessary to protect the health of such employee….
For those standards that set forth an individualized duty—that duty creates the unit-of-violation that OSHA may cite on a per-instance basis. While a failure to assess respiratory hazards pursuant to 1910.134(d) cannot be cited per-employee, if that failure results in not requiring respirators for eleven employees, the employer can be separately cited and fined for eleven violations of 1910.134(a)(2).
As a result of the limitations on the egregious enforcement policy—violations must be willful, the violations must be accompanied significant aggravating circumstances, and the cited standards must explicitly set individualized duties—which have been in place for the past thirty-plus years, per-instance citations were rarely issued. By definition, they would have always involved multiple willful violations and very significant penalties, reserved for truly egregious situations and bad actors. We saw this historically fewer than twenty times each year.
That is about to change.
OSHA’s New Instance-by-Instance Citation Policy
OSHA’s announcement replaces the historical egregious threshold for IBI citations with a much lower bar for OSHA to clear to cite employers on a per-instance basis. Now, in addition to willful violations, OSHA can issue IBI citations for violations characterized as Serious, and even some Other-than-Serious violations, so long as OSHA determines the violations to be or relate to “high-gravity” violations.
IBI citations still must legally be limited to standards that establish individualized duties rather than a general course of conduct, and for now, OSHA’s enforcement memorandum limits IBI citations to violations involving certain high-emphasis hazards—falls from heights, machine guarding, lockout-tagout, respiratory protection, permit required confined space entry, and trenching, as well as injury-and-illness recordkeeping violations (i.e., paperwork violations) that involve recordable injuries in those specific hazard categories.
Notwithstanding the focus on those hazards/standards, by opening the door to violations of any characterization (from willful down to other-than-serious), we expect to see orders of magnitude more instance-by-instance citations under this new policy. We also expect the limit to only specific high-emphasis hazards not to last very long. Recall that OSHA just abandoned the “high emphasis hazard” qualifying limitation in recent changes to its Severe Violator Enforcement Program, so it is hard to imagine OSHA keeps that limiting principle in place long after it watches massive penalties roll in over the next couple of years.
Doug Parker, President Biden’s Assistant Secretary of Labor for OSHA and the former Head of Cal/OSHA, made OSHA’s intentions clear in the press release about this change:
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. 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.
When Will OSHA Cite High-Gravity Violations on a Per-Instance Basis?
Based on OSHA’s new enforcement guidance, employers can expect to see IPI citations for high gravity violations in these four situations:
- The proposed citations are related to a fatality/catastrophe.
This criterion is similar to the prior willful-plus/egregious standard for per-instance citations (and the qualifying criteria for the Severe Violator Enforcement Program). Even though the outcome of an incident does not mean a violation occurred, or that the employer’s conduct is more egregious, but more significant injury outcomes have always driven more significant enforcement.
- The employer has received a willful, repeat, or failure-to-abate violation within the past five years where that classification is current (i.e., it has been affirmed in settlement of litigation or remains under contest).
If an employer receives any willful, repeat, or failure-to-abate violation, regardless of whether it relates to one of the high emphasis IBI standards (i.e., falls, trenching, machine guarding, respiratory protection, permit required confined spaces, lockout-tagout), the employer is at higher risk of receiving instance-by-instance citations if it receives a citation of any characterization of one of the IBI high-emphasis standards any time over the next five years.
- The employer has failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye pursuant to OSHA reporting regulation at 1904.39.
If an employer fails to report any work-related fatality, hospitalization, amputation, or loss of an eye, and OSHA becomes aware of the incident, then the employer is at greater risk of receiving instance-by-instance citations, even for violations entirely related to the injury that was not properly reported to OSHA. OSHA’s intent here is obvious: The agency is pushing employers to report all serious injuries and creating another, impactful disincentive against hiding those injuries from OSHA.
- For Injury and Illness Recordkeeping violations to be cited IBI, the non-recorded or improperly recorded injury or illness must have resulted from a high gravity serious violation.
Injuries or illnesses are recordable where they result in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or another significant injury or illness. If an employer is being cited for a recordkeeping violation (i.e., a failure to record or to properly/timely record a work-related injury or illness that meets one of those recording criteria), to be eligible for per-instance (i.e., a separate citation with a separate penalty for each violative recordable injury), the recordkeeping citations must involve an injury or illness that occurred because of a serious hazard. The way its enforcement memorandum is written, OSHA does not intend to limit IBI recordkeeping citations only to those high-emphasis hazards. Indeed, recordkeeping violations involving serious hazards is listed among those hazards as though it is a separate hazard category. Thus, given that the recording criteria (death, days away, medical treatment, etc.) generally ferret out non-serious injuries, and the recordkeeping category is not limited to any particular type of hazard, this policy is a massive expansion of OSHA’s recordkeeping enforcement authority.
What is a High-Gravity Serious Citation?
For as long as we can remember, the “gravity” determination (i.e., High – 10, Moderate – 5, or Low – 1) that OSHA applied to citations impacted the penalty calculation a little bit but was otherwise a totally irrelevant notation in the OSHA inspection file. Indeed, according to OSHA’s Field Operations Manual, “the gravity of the violation … shall be the basis for calculating the basic penalty for serious and other-than-serious violations,” and gravity is not otherwise discussed.
Now, within a matter of a few months, identifying and negotiating about the gravity assigned to citations is almost as important as the characterization (i.e., willful, repeat, serious, or other-than-serious). That is because of updates announced in September 2022 to OSHA’s dreaded Severe Violator Enforcement Program (SVEP) and these updates announced in January 2023 to the IBI citation policy. Specifically, SVEP qualifying criteria used to require willful or repeat violations of a high emphasis hazard (a specific set of high-profile standards), and now requires entry into SVEP based on any two “high gravity” willful or repeat violations of any OSHA standards, and eligibility for per-instance citations was expanded to “high gravity” serious and other-than-serious violations.
So, what is a “high gravity” OSHA citation? To determine the gravity of a violation, OSHA will make the following two assessments:
- Severity of the injury or illness that could result from the alleged violation; and
- Probability that an injury or illness will occur as a result of the alleged violation.
To be “High Gravity,” a citation must be considered by OSHA to have both a “high severity” and a “greater probability.”
There are three severity types: low, medium, and high. Only a high-severity hazard can result in a high gravity violation. Here is some guidance we have seen from OSHA about figuring out the severity:
- High Severity hazards are those that pose a risk of death, permanent disability, or chronic, irreversible illness.
- Medium Severity hazards pose a risk of temporary injuries or reversible illnesses resulting in hospitalization or a limited period of disability.
- Low Severity hazards pose a risk of temporary injuries or reversible illnesses that do not result in hospitalization and only require only minor supportive treatment.
If the severity is high, OSHA then will look at Probability, which will be categorized either as greater or lesser based on these factors:
- Greater Probability results when the likelihood that an injury or illness will occur is judged to be relatively high.
- Lesser Probability results when the likelihood of an injury or illness is judged to be relatively low.
OSHA considers the following factors when determining the probability that the injury or illness will occur:
- Number of employees exposed;
- Frequency and duration of employee exposure to hazardous conditions, including overexposures to contaminants;
- Employee proximity to hazardous conditions;
- Use of appropriate personal protective equipment;
- Medical surveillance program;
- Age of employees;
- Training on the recognition and avoidance of the hazardous condition; and
- Other pertinent working conditions.
How does this guidance apply to State Plans?
The egregious policy change was announced in a memorandum to Regional Administrators, rather than a formal update to the 1990 Egregious Policy Directive – CPL 02-00-080: Handling of Cases To Be Proposed for Violation-By-Violation Penalties). Change to the actual Directive is likely coming soon, but for now, it is just an enforcement memorandum, so the impact on the State OSH Plans is a little murky for the moment. The memorandum does, however, mention State Plans in the same way that the 1990 Directive did, and because of the language OSHA used in the 1990 Directive, we think this update will be foisted on to the State Plans. The 1990 Directive that has long-defined when OSHA may cite employers on a per-instance basis made it clear that the State Plans must adopt the policy. The Directive provides:
Advise the State designees that OSHA has determined that the violation-by-violation citation and penalty policy is an integral part of its nation-wide overall compliance strategy and, therefore, States are required to either adopt OSHA’s policy or an alternative ‘at least as effective as’ policy for application to the private sector.
The State Plans may not be pushed to move as quickly on this change because it has not yet been memorialized in the Directive, but we expect that will come soon enough because it is part of that same “nationwide overall compliance strategy” as the 1990 per instance policy was.
OSHA’s New Guidance Discouraging Grouping of Similar Violations
While the new IBI citation policy was enough of an alarm bell, simultaneous with that change, OSHA also issued a new enforcement memorandum discouraging its field offices from “grouping” similar citations as often as they have been. OSHA’s stated goal in discouraging grouping violations is to:
[A]chieve a deterrent effect. In particular, the agency may refrain from grouping violations where there is evidence that worksite conditions giving rise to the violations are separate and distinct, or where different conduct gave rise to the violations. This enforcement discretion is an important tool in OSHA’s arsenal that helps deter employers from flagrantly disregarding their responsibilities to protect workers and comply with OSHA standards and regulations. Proposed OSHA enforcement activity may lose its deterrent effect when citations are grouped. Regional Administrators and Area Directors may therefore exercise discretion where the evidence allows violations to be cited separately without grouping, when appropriate to achieve an adequate deterrent effect. This enforcement approach not only enhances deterrence, but also more accurately captures an employer’s overall lack of compliance.
To do so, OSHA now encourages Regional and Area Offices to avoid grouping where the evidence allows for separate citations and grouping does not elevate the gravity or classification and resulting penalty. The guidance also directs the field offices to consider citing violations separately where there are differing abatement methods, where each violative condition may on its own result in death or serious physical harm, or where each violative condition exposes workers to a related but different hazard.
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These changes are part and parcel of an ongoing enforcement paradigm shift at OSHA, exacerbating what has already been of one of the most aggressive, enforcement-focused administrations in OSHA’s history. Over the last two years, we have seen a 15% increase in OSHA’s penalty authority, and as OSHA moved out of pandemic-mode in FY2022, the agency set a record for the most $100,000+ enforcement actions in OSHA’s history.
Nevertheless, as the Head of OSHA said in the press release accompanying these latest changes, OSHA is “using all the tools available in its toolbox” to further intensify enforcement. We will now see OSHA apply penalty multipliers much more often under its new instance-by-instance citation authority and by less frequently grouping similar violations. The result will be scores more significant enforcement actions, and with the other recent change to the Severe Violator Enforcement Program, orders of magnitude more employers treated as bad actors.