OSHA new enforcement directive effective March 26, 2023

Each year OSHA publishes new Enforcement Directives. These directives set the agenda for inspectors to specifically take a close look at certain problems that are critical to the safety and health of employees. This new directive is explicitly focused on repeat and/or willful violators. The phrase “repeat” means a company has been cited previously for this violation but it continues to be a problem. “Willful” means this is a violation of which you have be warned about or it is common knowledge. In addition, they are including employers who repeatedly make decisions where cost considerations significantly outweigh safety concerns.

OSHA is making a hard run at agriculture, maritime and construction industries but by including “general industry” in the list it can target healthcare too. Of particular concern to all practices are respiratory protection and recordkeeping rules (including whistleblower protection).

By stating that they will not be bundling charges, this means if one situation violates several laws the employer will be given the full charge for each law violated as opposed to the normal inspection that could bundle these laws into one charge. To make matters worse, any violation that is considered repeat or willful is cited at 10 times the normal maximum charge and no discounts are applied, including the normal 60% discount for a business with fewer than 250 employees. This charge for federal states (or states that have adopted the new federal states) is $156,259.00 per law violated.

The full text of the OSHA announcement is listed below:

OSHA Regional Administrators and Area Office Directors now have the authority to cite certain types of violations as “instance-by-instance citations” 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 for 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.

In a second action, OSHA is reminding its Regional Administrators and Area Directors of their authority not to group violations, and instead cite them separately to more effectively encourage employers to comply with the intent of the OSH Act. 

“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. Employers who callously view injured or sickened workers simply as a cost of doing business will face more serious consequences.”