New Occupational Safety and Health Administration (OSHA) enforcement guidance set to take effect on March 27, 2023, will expand OSHA’s authority to issue instance-by-instance, or “IBI,” citations. Since 1990, OSHA has issued such IBI citations only upon finding “egregious willful violations,” but the new guidance – set forth in OSHA’s January 26, 2023 memorandum – permits OSHA to issue IBI citations for certain “high-gravity” serious violations.

In a related memorandum issued on the same day, OSHA reiterated its intention of avoiding the grouping of violations when possible where grouping “does not elevate the gravity or classification and resulting penalty.”

Those “high-gravity” violations which may now result in IBI citations include (1) lockout/tagout, (2) machine guarding, (3) permit-required confined space, (4) respiratory protection, (5) falls, (6) trenching, and (7) other-than-serious violations with respect to recordkeeping.

These IBI citations may be applied where the text of the applicable standard allows for them, and where a violation cannot be abated by a single method of abatement. The guidance also directs OSHA to “normally” consider one or more of the following factors in deciding to issue IBI citations:

  • Whether the employer has received a willful, repeat, or failure to abate violation within the past five years which that classification is current;
  • Whether the employer has failed to comply with 29 C.F.R. § 1904.39 reporting requirements for any fatality, inpatient hospitalization, amputation, or loss of an eye;
  • Whether the citations are related to a fatality or catastrophe; and
  • If the citations are in regards to recordkeeping, whether they are related to an injury or illness that occurred as a result of serious hazard.

However, it appears these factors are not exclusive, as the guidance also provides that IBI citations may be issued in the absence of the above factors if “exigent factors” indicate IBI citations would have a deterrent effect. Justification for the use of IBI in such circumstances must be detailed in the case file.

These new changes are certain to increase the financial ramifications for certain violations. In an effort to avoid potential liability, employers should revisit their workplace safety policies and practices to ensure they are compliant with OSHA regulations. Please contact a Husch Blackwell workplace safety and health team member with any questions. 

The new OSHA guidance referenced in this alert can be accessed by clicking the links below:

https://www.osha.gov/memos/2023-01-26/application-of-instance-by-instance-penalty-adjustments

https://www.osha.gov/memos/2023-01-26/exercising-discretion-when-not-to-group-violations

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Photo of Donna Pryor Donna Pryor

A member of Husch Blackwell’s Energy & Natural Resources group, Donna focuses on commercial and administrative litigation related to mine safety and occupational safety and health. She also assists clients in crisis management and strategic communications related to workplace health and safety issues.…

A member of Husch Blackwell’s Energy & Natural Resources group, Donna focuses on commercial and administrative litigation related to mine safety and occupational safety and health. She also assists clients in crisis management and strategic communications related to workplace health and safety issues.

Donna has extensive experience in the production of precious metals, aggregates, cement, industrial minerals, coal, salt, potash, phosphate, granite, limestone, and oil and gas. She combines her legal skills and government knowledge with her litigation prowess for clients facing complex problems.

Photo of Eleanor Kittilstad Eleanor Kittilstad

Eleanor serves as an advocate for clients in labor and employment matters—whether that means defending clients in court or at mediation, or helping prevent problems before they begin.

Eleanor always knew that she wanted to practice in an area with direct, practical application—and

Eleanor serves as an advocate for clients in labor and employment matters—whether that means defending clients in court or at mediation, or helping prevent problems before they begin.

Eleanor always knew that she wanted to practice in an area with direct, practical application—and labor and employment was a perfect fit. With the workplace playing such a central role in most individuals’ lives, she was drawn to the idea of applying the law to help companies develop workplaces reflecting their values.

Much of Eleanor’s practice is devoted to employment litigation defense, and she is passionate about protecting clients’ interests in court. Prior to joining the firm, Eleanor clerked at the U.S. District Court for the Western District of Missouri for two years, an experience that taught her how to be most effective at trial and before a judge. She also developed an instinct for when going to court can be helpful, and when a case is better resolved through mediation. In addition to her clerkship, Eleanor previously represented students with disabilities in special education matters.

While Eleanor is a passionate advocate for clients in their legal disputes, she also devotes a significant portion of her practice to preventative counsel. Eleanor often works with clients over multiple years, getting to know them and their businesses and working hand in hand with them to prevent employment lawsuits. Her primary goal is to help clients look ahead, spot potential problem areas and develop a workplace culture that benefits both the company and its employees.