{"id":6952,"date":"2023-01-30T09:33:57","date_gmt":"2023-01-30T14:33:57","guid":{"rendered":"https:\/\/jordanbarab.com\/confinedspace\/?p=6952"},"modified":"2025-05-19T15:15:28","modified_gmt":"2025-05-19T19:15:28","slug":"new-osha-enforcement-policy-will-raise-penalties","status":"publish","type":"post","link":"https:\/\/jordanbarab.com\/confinedspace\/2023\/01\/30\/new-osha-enforcement-policy-will-raise-penalties\/","title":{"rendered":"New OSHA Enforcement Policy Will Raise Penalties"},"content":{"rendered":"

The Occupational Safety and Health Administration is known for its low penalties. Although OSHA’s maximum penalties have been gone up significantly since 2016, when Congress raised them and ensured annual increases tagged to the inflation rate, they are still often too low to modify the behavior of medium or large companies. The maximum penalty for a serious violation of an OSHA standard stands at $15,625 and a willful violation will set a company back $156,250.\u00a0 Not a lot, especially for a large company. Amazon, for example, was recently fined around $60,000 for several violations of OSHA’s General Duty Clause — not a lot for a trillion dollar company.<\/p>\n

Instance By Instance<\/h2>\n

Since the late 1980s OSHA has had a way to multiply those penalties in extreme (or “egregious”) cases. Normally, exposing 2 workers or 100 workers to the same hazard would result in the same $15,625\u00a0 serious violation or $156,250 willful violation (if it wasn’t negotiated down for a variety of reasons.) But in 1990 (the Bush I administration), OSHA issued its “instance by instance<\/a>” (IBI) enforcement policy which allowed the agency, in especially egregious situations, to cite the same penalty for each worker exposed to a hazard.<\/p>\n

So if 5 workers were found down inside an illegal 10-foot deep trench — and there were grounds for a willful violation\u00a0 — instead of a $156,250 penalty, the total penalty could be $781,250 (5 x $156,250).\u00a0 OSHA explained in 1990 that “The Act intends that this incentive be directed not only to an inspected employer but also to any employer who has hazards and violations of standards or regulations.”<\/p>\n

And the IBI directive added that\u00a0 “The large proposed penalties that accompany violation-by-violation citations are not, therefore, primarily punitive nor exclusively directed at individual sites or workplaces; they serve a public policy purpose; namely, to increase the impact of OSHA’s limited enforcement resources.”<\/p>\n

OSHA used its so-called “egregious” policy only in rare situations<\/a> where the agency issued willful violations and the employer demonstrated such negligence that a message needed to be sent forth to the country. These cases required meticulous documentation and review by OSHA enforcement officials and lawyers all the way up to the Assistant Secretary’s office in Washington DC. Back in the pre-Zoom days, regional enforcement staff would fly to Washington to make a presentation to the Assistant Secretary and Department of Labor Solicitors.<\/p>\n

Consequently, these cases were few and far between.<\/p>\n

Three Decades Later<\/h2>\n

Earlier this week, in order “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,” OSHA updated its instance-by-instance policy<\/a> applying it more widely and making it much easier to use.<\/p>\n

This is intended to be a targeted strategy for those employers who repeatedly choose to put profits before their employees\u2019 safety, health and wellbeing. — OSHA Assistant Secretary Doug Parker<\/strong><\/span><\/p><\/blockquote>\n

Assistant Secretary for Occupational Safety and Health Doug Parker stated that\u00a0 “This is intended to be a targeted strategy for those employers who repeatedly choose to put profits before their employees\u2019 safety, health and wellbeing. Employers who callously view injured or sickened workers simply as a cost of doing business will face more serious consequences.”<\/p>\n

Regional Discretion<\/h3>\n

Instead of being required to get national office approval of instance-by-instance citations<\/a>, “OSHA Regional Administrators and Area Office Directors will now have the authority to cite certain types of violations as \u201cinstance-by-instance citations\u201d without involvement of the national office.<\/p>\n

High Gravity Serious And Willful<\/h3>\n

And instead of just willful<\/em> violations, \u00a0OSHA enforcement staff can use instance-by-instance violations for high-gravity serious<\/em> violations of OSHA standards specific to falls, trenching, machine guarding, respiratory protection, permit required confined spaces, lockout tagout, and other-than-serious violations of OSHA standards specific to recordkeeping.<\/p>\n

“High gravity” means violations that may result high severity injuries (or deaths) and a greater probability of such incidents occurring.<\/p>\n

In order to apply this policy, the employer still has to demonstrate some worse-than-normal behavior:<\/p>\n

A decision to use instance-by-instance citations should normally be based on consideration of one or more of the factors listed below. The factors to be considered include:<\/p>\n