OSHA Increasing Fines Through Major Changes in Enforcement Policies

In light of the decision by the previous, marginally Democratic Congress not to increase OSHA fines beyond inflation adjustments and the shift to a Republican House, it appears the Biden Administration has decided it will increase deterrence against OSHA violations by implementing penalty increases through two changes in its enforcement policies.

One January 26, 2023 OSHA enforcement memo (“Exercising Discretion When Not to Group Violations”) states that, in cases where grouping does not elevate the gravity or classification and resulting penalty, the violations should not be grouped if the evidence allows for separate citations – presumably where the wording of the standard permits that interpretation and the same remedial action would not cure the violation. For example, 29 CFR § 1910.212(a)(3)(ii) states: “The point of operation of machines whose operation exposes an employee to injury, shall be guarded.” Assume three widely separated locations in a plant are missing guards. If the only solution is to add three guards, that situation would appear to permit citation as three separate alleged violations because adding one guard does not remedy the other alleged violations. On the other hand, if the three points of operation are located where they can be effectively guarded by a single enclosure, and the employer guards them in that manner, the employer should argue that they should be grouped into one alleged violation.

Assume an employer lacks the written lockout/tagout procedures/instructions for its machines required by Section 1910.147(c)(4)(i), and OSHA issues a citation for each (non-exempt) machine not covered by an equipment-specific procedure. At a minimum, the employer should argue that grouping as one alleged violation is required for machines that can be and are covered by a common procedure/instruction. It is unclear whether an equipment-specific procedure/instruction is required because OSHA apparently amended the LOTO standard to adopt this requirement without the required rulemaking.

Section 1910.37(a)(3) states: “Exit routes must be free and unobstructed. No materials or equipment may be placed, either permanently or temporarily, within the exit route.” Could OSHA sustain a separate citation for each blocked exit route within a facility?

OSHA’s next action may be to summarily amend its standards, without imposing any additional compliance obligations on employers, to permit instance-by-instance or non-grouped citations where the current language of the standards would not support that approach. For example, Section 1910.176(a) states: “Aisles and passageways shall be kept clear and in good repair, with no obstruction across or in aisles that could create a hazard.” Could OSHA sustain a separate citation for each obstruction or each blocked aisle? If not, it would be easy to rewrite the standard to state: “Each aisle and passageway shall be kept clear and in good repair, with no obstruction across or in any aisle that could create a hazard.”

A second January 26, 2023 OSHA enforcement memo (“Application of Instance-by-Instance Penalty Adjustments”) states that the current policy of limiting instance-by-instance citations to alleged willful violations is being modified to authorize instance-by-instance citations for high-gravity serious 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. In other words, OSHA is taking the position that the alleged violations no longer need to be willful, much less egregious, to merit instance-by-instance penalties.

It appears that OSHA is moving toward the longstanding approach toward civil penalties followed by EPA:

“If a penalty is to achieve deterrence, both the violator and the general public must be convinced that the penalty places the violator in a worse position than those who have complied in a timely fashion.”

There is no doubt these changes will spur additional citation contests, including litigation over whether OSHA has the authority to implement these changes and how the Review Commission and its trial judges exercise their authority “to assess all civil penalties provided in [Section 17 of the OSH Act], giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.”

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