Joe Whiteman, director of safety services The Voice Newsletter February 2023

You may have missed a press release from OSHA on January 26, 2023, where they have introduced changes to how they administer their “Instance by Instance” (IBI) citation policy. The new policy will take effect sixty days from the date of release. The purpose of the change is to make the citation process more effective when it comes to repeat violations to life threatening hazards as well as failure to comply with certain health and safety requirements.
The updates to the existing policy which has been in around since the early 90’s will go into effect in March of 2023 and up until this new revision, only applied to “willful violations” and rarely used. This is not the case with the new update as they now will allow OSHA to issue citations for each instance of violation in certain areas where OSHA determines the case involved “high-gravity”serious violations. These violations include lockout tagout, machine guarding, falls, trenching,respiratory protection, permit required confined spaces and other-than-serious violations specificto recordkeeping. As you can see, the new changes dramatically increase penalty exposure.

OSHA has provided specific criteria for determining whether instance-by-instance citations shouldbe issued. The factors to be considered include the following:

• The employer has received a willful, repeat, or failure to abate violation within the past fiveyears where that classification is current.
• The employer has failed to report a fatality, inpatient hospitalization, amputation, or loss ofan eye pursuant to the requirements of 29 CFR 1904.39.
• The proposed citations are related to a fatality/catastrophe.
• The proposed recordkeeping citations are related to injury or illness(es) that occurredbecause of a serious hazard.

The purpose behind the update to the IBI citation policy was explained by OSHA Assistant Secretary Director, Doug Parker where he expressed that the guidance was to target “employers who repeatedly choose to put profits before their employees’ safety, health and wellbeing.” Understanding this new approach and increased exposure to penalties, I encourage you to beproactive, review your policies, programs, and work practices to ensure you are meeting OSHArequirements. The enforcement memo can be found here: Application of Instance-by-Instance Penalty Adjustments | Occupational Safety and Health Administration (osha.gov)