Changes in OSHA Enforcement Guidance Seek to "Achieve a Deterrent Effect"
New enforcement guidance issued by OSHA last week is intended to help the agency “achieve a deterrent effect” among employers who repeatedly expose workers to serious hazards or fail to comply with OSHA standards and regulations. The new guidance authorizes OSHA regional administrators and area office directors to cite certain types of violations as “instance-by-instance citations” for the purpose of additional deterrence to employers who meet certain criteria. This new policy is intended to encourage employers to be more proactive when it comes to the prevention of workplace fatalities and injuries, the agency explains. OSHA also reiterates regional administrators’ and area directors’ existing ability to exercise discretion to not group violations in cases “where there is evidence that worksite conditions giving rise to the violations are separate and distinct.” An OSHA memorandum for regional administrators issued on Jan. 26 explains that “enforcement activity may lose its deterrent effect when citations are grouped.” The agency also says that citing violations separately can provide a more accurate picture of an employer's overall lack of compliance.
The scope of the guidance for instance-by-instance citations is limited to high-gravity serious violations, or those involving danger of death or extremely serious injury or illness, related to falls, trenching, machine guarding, respiratory protection, permit-required confined space, and lockout/tagout as well as violations specific to recordkeeping. The new guidance covers enforcement activity in general industry as well as the agriculture, maritime, and construction industries. Factors that agency personnel will consider when deciding whether to issue instance-by-instance citations include whether an employer has received a willful, repeat, or failure to abate violation within the past five years; whether an employer has failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye; if OSHA’s proposed citations are related to a fatality or catastrophe; and if proposed citations for recordkeeping have to do with injury or illness that occurred as a result of a serious hazard.
Enforcement guidance for when not to group violations provides examples for cases in which agency personnel may use discretion to cite violations separately. The examples include situations in which “violations have differing abatement methods, each violative condition may result in death or serious physical harm, and each violative condition exposes workers to a related but different hazard,” OSHA explains. The agency notes that grouping violations is appropriate when the same abatement measures will correct multiple violations and when “substantially similar violative conduct or conditions” bring about the violations in question. OSHA sees citing violations separately as a way to encourage compliance among employers.
“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,” said 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 well-being.”
OSHA’s new guidance regarding instance-by-instance citations will go into effect 60 days from the agency’s announcement on Jan. 26. Regional administrators’ and area directors’ authority to exercise discretion to not group violations is part of existing OSHA policy.
For more information, read OSHA’s news release.