The Occupational Safety and Health Administration (OSHA) has been much more aggressive under the Biden Administration than the previous White House. The agency has stepped up enforcement efforts and sought higher penalties when possible. Part of these increased enforcement efforts includes two new memoranda recently issued by the agency.
OSHA stated that these new enforcement guidelines are designed to “make its penalties more effective in stopping employers from repeatedly exposing workers to life-threatening hazards or failing to comply with certain workplace safety and health requirements.”
The first directive allows regional administrators and area directors to cite certain types of violations as Instance-By-Instance (IBI) citations (https://www.osha.gov/memos/2023-01-26/application-of-instance-by-instance-penalty-adjustments). This action applies for cases where the agency identifies “high-gravity” serious violations of OSHA standards specific to certain conditions where the language of the rule supports a citation for each instance of non-compliance. These conditions include lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching and cases with other-than-serious violations specific to recordkeeping.
The change is intended to ensure OSHA personnel are applying the full authority of the Occupational Safety and Health Act where increased citations are needed to discourage non-compliance. The new guidance covers enforcement activity in general industry, agriculture, maritime and construction industries, and becomes effective 60 days from Jan. 26, 2023. The current policy has been in place since 1990 and applies only to egregious willful citations.
The second directive (https://www.osha.gov/memos/2023-01-26/exercising-discretion-when-not-to-group-violations) gives local officials more discretion to not group violations together and instead to cite them separately to put a focus on each hazard versus treating them as part of a larger problem. Of course, these measures also allow the agency to significantly increase the penalties assessed and encourage more widespread compliance.
“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,” explained Assistant Secretary for Occupational Safety and Health Doug Parker. “This is intended to be a targeted strategy for those employers who repeatedly choose to put profits before their employees’ safety, health and wellbeing.”
Daniel Kaplan of Foley and Lardner LLP wrote in a public assessment to clients, “The immediate effect will be significantly increased penalty assessments by the agency; six-figure penalty assessments are likely to become far more common.”
Pallet companies should take an inventory of current practices, training and safety plans for key areas covered by the new IBI guidance. Special attention should be given to lockout/tagout, machine guarding, respiratory protection, fall hazards and recordkeeping.
Duane Morris LLP stated, “OSHA new guidance not only expands the application of IBI citations to “willful, repeat or failure to abate violations,” but also places full discretion in the hands of regional administrators and area directors to depart from its new IBI enforcement guidance factors to ensure penalty adjustments have the maximum effect.”
Not only do employers want to do whatever they can to create safe working environments, but the changes to the penalty structure could lead to higher fines and penalties.
