OSHA annually adjusts its penalties for inflation. The adjustments are effective for penalties assessed after January 15, 2023. The new maximum penalty for serious, other-than-serious, and posting requirements is $15,625 per violation. The new maximum penalty for failure to abate (correct safety violation) is $15,625 per day beyond the abatement date. The new maximum penalty for willful or repeated violations is $156,259 per violation.
On January 26, 2023, OSHA announced a new enforcement guidance. OSHA Regional Administrators and Area Directors now will have the authority to cite certain types of violations as “instance-by-instance” (IBI) citations. These IBI citations can be issued for “high-gravity” serious violations of standards specific to certain conditions. These include lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching and cases with other-than-serious violations specific to recordkeeping. The new guidance covers enforcement activity in general industry, agriculture, maritime and construction industries. Previously, IBI citations applied only to willful citations. The new guidance becomes effective 60 days from January 26, 2023.
In practical terms, the new guidance permits OSHA to increase proposed fines. In the past, OSHA often has grouped several incidents into one violation and issued a single proposed penalty. Now OSHA is authorized to cite each incident as a separate violation with a proposed penalty. For instance, instead of being cited for one combined serious violation with a proposed penalty of $15,625, OSHA can issue three citations for three incidents (e.g., three machines without machine guarding) with a proposed penalty of $46,875. OSHA will issue a press release after issuing IBI citations against an employer.
Employers’ Bottom Line
The Biden administration is placing greater emphasis on enforcement of workplace safety. The new enforcement guidance is the latest tool to increase costs for employers that do not comply with OSHA standards. Employers likewise should place greater emphasis on ensuring compliance with OSHA standards.
If you have any questions regarding this Alert, please contact Rick Warren, a partner in our Atlanta office at rwarren@fordharrison.com. Of course, you can also contact the FordHarrison attorney with whom you usually work.