Between the pandemic and a looming recession, the last few years have not been easy for employers or their HR teams. But with the Occupational Safety and Health Administration's latest
OSHA will now allow instance-by-instance or IBI citations to be issued to employers who commit serious violations of OSHA's standards — this includes some of the most commonly cited violations, like poor respiratory protection, deficient machine maintenance and disablement procedures and a lack of employee fall prevention. Previously, IBI citations were only issued if OSHA felt employers committed "willful-egregious" violations, which needed to be accompanied by substantial proof.
More citations means more penalties, and if employers aren't careful, they could rack up quite a bill, underlines John Ho, partner at Cozen O'Connor, a labor and employment law firm. Ho also serves as co-chair of his firm's OSHA-Workplace Safety Practice team.
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"Through this administration, OSHA has made it clear that they are actively engaged in more rule-making than they were during Trump's administration," says Ho. "They want to incentivize employers to do the right thing, and what better way to do that than hitting them where it hurts: their pocketbooks."
OSHA issued a memorandum detailing IBI guidance for its officers on January 26, 2023, with the new rule in effect as of March 27. Ho notes that the policy change is likely a response to Congress rejecting its request to increase the maximum penalty for serious violations to $70,000. While penalties were adjusted to inflation, the maximum is currently $15,625 for serious violations, such as those that fall under IBI citations. Although, willful violations can incur up to $156,259 per penalty. Now that OSHA can issue separate citations for more common violations, employers will face bigger financial consequences regardless of the penalty amount.
"OSHA thought about what tools they had available that doesn't require congressional approval," says Ho. "If they can't get their penalties increased, then they want to help companies prioritize safety by making it very expensive not to."
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OSHA also issued another memorandum reminding their administrators that they have the authority to separate multiple violations, rather than grouping them into a single penalty. Generally, OSHA groups violations if the violations are similar or if the same measures can be used to address multiple violations, hence reducing the monetary penalties.
"This new memorandum is telling regional administrators and area directors to exercise greater discretion to cite alleged violations separately," says Heather MacDougall, partner at Morgan Lewis, a global law firm. "This should be considered when the violations have differing abatement methods."
Both memorandum point to the likelihood of more violations and more penalties per employer. For example, if OSHA finds that five machines did not have the right guards in place to prevent cuts, amputations or lacerations, then OSHA can issue five separate citations — that's more than $60,000 worth of penalties.
MacDougall advises employers to increase
"Ensure that there are accurate reporting practices and record keeping," says MacDougall. "These violations can yield significant monetary penalties under the new instance-by-instance policy."
MacDougall also points out more violations mean more employers will land on the "severe violator" list, otherwise known as its Severe Violator Enforcement Program. Employers on this list face more frequent inspections as well as a public press release detailing violations that put the business on this list.
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Still, not all hope is lost if an employer is issued multiple citations.
"Remember, OSHA's proposed penalties, however, are just that," says MacDougall. "Even if OSHA cites alleged violations separately, an employer can ask the Occupational Safety and Health Review Commission to group them."
Additionally, OSHA will adopt a new regulation in June, touching on the use of subpoenas during investigations. No draft of said regulation has been made public, but OSHA claims the regulation intends to make the subpoena process more consistent and transparent for employers.
Ho notes that OSHA is on a path to strengthen its enforcement effort after becoming a household name during the COVID-19 pandemic. But beyond working on a COVID health and safety standard for the healthcare industry, OSHA is mostly returning to more traditional concerns, along with a renewed focus on workplace violence and heat stress.
"Expect that you're going to see more citations and more aggressive penalties," says Ho. "This is a good time to revisit your health and safety practices."
