Federal OSHA hasn’t issued a new standard and yet construction contractors and other employers that cut corners and endanger workers may soon be facing much higher fines for doing so. That’s the takeaway from the release of new guidance related to how regional enforcement officers issue citations, which is set to go into effect on March 26, 2023.

LIUNA General President
Terry O’Sullivan

In short, the new guidance directs OSHA staff to avoid grouping together safety and health violations and instead opt for “instance-by-instance” (IBI) citations. What does that mean for construction employers? For example, an OSHA inspector who finds three workers in an unprotected trench might normally choose to group those violations and issue one citation to the employer. Under the new IBI guidance, the OSHA inspector would issue three separate trench safety violations – one for each worker exposed to the hazard.

“The message here is plain and simple – protect your workers,” says LIUNA General President Terry O’Sullivan. “When unprotected trenches and other serious hazards endanger the lives of multiple workers, construction employers are now going to face fines that reflect that.”

Issuing Grouped vs. Instance-by-Instance Violations

OSHA inspectors have had the discretion to group fines or issue IBI citations for years. However, the old IBI policy only applied to situations where employers repeatedly committed egregious violations in “clear bad faith” – also referred to as “willful” violations.

“After years of working with employers to reduce the penalties they face for putting workers at risk, OSHA is back to using enforcement to ensure compliance,” says Walter Jones, the LHSFNA’s Director of Occupational Safety & Health. “Many safety professionals believe this is what’s needed to reach the chronically poor performers and those that disregard safety standards in favor of the bottom line.”

The updated guidance expands the IBI policy to include “serious” violations in seven different areas:

• Falls
• Trenching
• Machine guarding
• Respiratory protection
• Permit-required confined spaces
• Lockout/tagout
• Recordkeeping

For another example, if an inspector finds three different machines with their safety guards removed, they now have the discretion to treat those as three separate and distinct violations. That means an employer would go from facing one “serious” $15,625 violation to facing $46,875 in fines.

This change has the potential to drastically increase the potential fines faced by employers that fail to follow OSHA safety and health standards. However, the guidance doesn’t direct OSHA inspectors to always issue IBI citations in these instances. Instead, it seeks to issue contractors IBI citations when certain criteria are met:

• The employer received a willful, repeat or failure-to-abate violation in the last five years
• The employer failed to report a fatality, hospitalization, amputation or loss of an eye
• The citations are related to a fatality or catastrophe (defined as three or more hospitalizations caused by the same incident)
• The recordkeeping citations are related to injury or illness caused by a serious hazard

Image courtesy of LIUNA Local 42

As OSHA’s press release makes clear, the goal behind this change is to deter employers that view OSHA’s relatively inexpensive violations as simply a cost of doing business. Although OSHA’s maximum penalties have gone up significantly since 2016 – when Congress raised them and tied annual increases to inflation – they are still often too low to change the behavior of many companies.

“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,” said Doug Parker, Assistant Secretary for Occupational Safety and Health.

And if the threat of larger fines isn’t enough, federal OSHA is giving employers one more reason to pay attention to the safety and health of their workforce: any IBI citations will also come with an OSHA press release naming the company and describing the violations.

[Nick Fox]