In order to save lives and target “employers who repeatedly choose to put profits before their employees’ safety, health and wellbeing[,]” the Department of Labor recently announced that OSHA Regional Administrators and Area Office Directors now have the authority to cite certain types of violations as “instance-by-instance citations“.  These citations apply to cases where the Agency identifies “high-gravity” serious violations of OSHA standards specific to certain conditions.  Those conditions might include lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching and for cases with other-than-serious violations specific to recordkeeping.

OSHA Regional Administrators and Area Office Directors’ decision to use instance-by-instance citations should be based on consideration of one or more of the following factors: (1) the employer has received a willful, repeat, or failure to abate violation within the past five years where that classification is current; (2) the employer has failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye pursuant to the requirements of 29 CFR 1904.39; (3) the proposed citations are related to a fatality/catastrophe; and (4) the proposed recordkeeping citations are related to injury or illness(es) that occurred as a result of a serious hazard.

The change is intended to ensure OSHA personnel are applying the full authority of the Act where increased citations are needed to discourage non-compliance. To that end, OSHA personnel are reminded to  not to group violations. Grouping violations should be considered when:

1.    two or more serious or other-than-serious violations constitute a single hazardous condition that is overall classified by the most serious item
2.   grouping two or more other-than-serious violations considered together create a substantial probability of death or serious physical harm, or
3.   grouping two or more other-than-serious violations results in a high gravity other-than serious violation.

In cases where grouping does not elevate the gravity or classification and resulting penalty, then violations should not be grouped if the evidence allows for separate citations. Multiple citations are encouraged where multiple employees are violating the OSH Act at the same time, performing the same task, on the same Project.

The new guidance covers enforcement activity in general industry, agriculture, maritime and construction industries, and becomes effective 60 days from March 27, 2023. The previous policy had been in place since 1990 and applies only to egregious willful citations.

The attorneys in our Austin and Dallas office are experienced in assisting clients with OSHA violations.  If you should have any questions, please contact us at info@gstexlaw.com.

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