By Robert G. Chadwick, Jr., Partner, Freeman Mathis & Gary, LLP.

Last year, OSHA cited a roofing contractor for willfully failing to provide fall protection to its employees. Instead of issuing one citation item with one proposed penalty, as is the agency’s normal practice, OSHA issued eight citation items with eight proposed penalties for each of the affected employees. What would normally have been one proposed penalty of $145,027, became aggregate proposed penalties of $1,160,216.

In two memoranda published earlier this year, OSHA signaled to employers the intent to expand the use of such instance-by-instance citations on and after March 27, 2023. The first memorandum addresses the “Application of Instance-by-Instance Penalty Adjustments.” The second memorandum focuses on the topic of “Exercising Discretion When Not to Group Violations.” Even for smaller employers, OSHA promises to significantly raise the stakes of OSHA inspections.

What is OSHA’s Normal Citation Practice?

According to the OSHA Field Operations Manual, “[s]eparate violations of a single standard … having the same classification found during the inspection of an establishment or worksite generally shall be combined into one alleged citation item.”

For instance, where an employer operates more than one machine in violation of the machine guarding standard found in 29 C.F.R. § 1910.212(a)(3)(ii), the violations are generally combined into one citation item with one proposed penalty, regardless of the number of affected machines. Where an employer fails to properly train its employees, in violation of a training standard, such violations are generally combined into one citation item with one proposed penalty, regardless of the number of affected employees.  

Also, “[w]hen a source of an identified hazard involves interrelated violations of different standards, the violations can be grouped into a single violation.” The general rule of thumb is to group into one citation item violations which “are so closely related that they may be considered a single hazardous workplace or condition.” A single machine with multiple guarding violations is thus generally grouped into one citation item with one proposed penalty.

Even under OSHA’s normal citation practice, however, combining or grouping into one citation item with one proposed penalty will not occur for:

(1)        violations discovered during multiple inspections of a single establishment or worksite;

(2)       violations discovered at separate establishments or worksites of the same employer; or

(3)        violations of the general duty clause of the OSH Act.       

What Are Instance-by-Instance Citations?

An instance-by-instance citation does not combine or group violations into one citation item with one proposed penalty. Instead, an instance-by-instance citation alleges a separate violation as to each affected machine, each affected employee (like the roofing contractor above), or each omitted or erroneous recordkeeping entry.   

For an employer with more than one machine in violation of the machine guarding standard, for instance, each affected machine can be the basis of a separate citation item with a proposed penalty. An employer with ten affected machines can be subject to ten citation items, each with its own proposed penalty, rather than one citation item with one proposed penalty.

For an employer with more than one improperly trained employee, in violation of a training standard, each affected employee can be the basis of a separate citation item with a proposed penalty. An employer with 10 affected employees can be subject to ten citation items, each with its own proposed penalty, rather than one citation item with one proposed penalty.  

For an employer who fails to record workplace injuries and illnesses, as required by OSHA standards, each omitted recording can be the basis of a separate citation item with a proposed penalty. An employer with 10 omitted entries can be subject to ten citation items, each with its own proposed penalty, rather than one citation item with one proposed penalty.

When Have Instance-By-Instance Citations Historically Been Issued by OSHA?

Under CPL 02-00-080, published by OSHA on Oct. 21, 1990, instance-by-instance citations have historically been limited to egregious willful violations. The specific criteria include:

 (1)      The employer is found in violation of an OSHA requirement: (a) of which she/has actual knowledge at the time of the violation; and (b) intentionally through conscious, voluntary action or inaction, having made no reasonable effort to eliminate the known violation.     

(2)        The violations resulted in worker fatalities, a workplace catastrophe, or a large number of injuries or illnesses.

(3)       The violations resulted in persistently high rates of worker injuries or illnesses.

(4)        The employer has an extensive history of prior violations of the Act.

(5)        The employer has intentionally disregarded its safety and health responsibilities.

(6)        The employer’s conduct taken as a whole amounts to clear bad faith in the performance of its duties under the Act.

(7)        The employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that might be in place.              

Are Instance-By-Instance Citations Lawful?

Federal appellate courts have upheld the authority of OSHA to issue instance-by-instance citations where appropriate. CPL 02-00-80 acknowledged that not all OSH Act violations are susceptible to instance-by-instance citations. Accordingly, there may be circumstances where such citations are unlawful.

What Changes Are Signaled by the Instance-By-Instance Citation Memorandum?

Under the new instance-by-instance citation memorandum, OSHA indicated such citations will no longer be limited to egregious willful violations for violations of certain OSHA standards. The agency will be authorized to issue instance-by-instance citations for (1) serious violations of OSHA standards specific to falls, trenching, machine guarding, respiratory protection, permit required confined spaces, and lockout tagout, and (2) non-serious violations specific to recordkeeping.

The new policy cites several factors to be considered in deciding whether to issue an instance-by-instance citation. The factors to be considered include:

(1)        The employer has received a willful, repeat or failure to abate violation within the past five years where that classification is current.    

(2)        The employer has failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye pursuant to the requirements of 29 C.F.R. § 1904.39.

(3)        The proposed citations are related to a fatality/catastrophe.   

(4)        The proposed recordkeeping citations are related to injury or illness(es) that occurred as a result of a serious hazard.

What Did OSHA Signal in the Group Citation Memorandum?

The stated intention of this memorandum is to “reiterate existing policy that allows Regional Administrators and Area Directors discretion to not group violations in appropriate cases to achieve a deterrent effect. In particular, the agency may refrain from grouping violations where there is evidence that worksite conditions giving rise to the violations are separate and distinct, or where different conduct gave rise to the violations.”

While not indicating any change in policy, the implied nudge of the memorandum is unmistakable – the discretion to not group violations into one citation item should be exercised more often. Unlike the instance-by-instance memorandum, this memorandum was not limited to violations of specific OSHA standards.

Who Should be Concerned by OSHA’s Memoranda?

OSHA described the target of the new strategy as an employer who “doesn’t get it.” Such an employer may be a repeat offender or a first -time offender which demonstrated, according to OSHA, callous indifference to the safety and health of its workers. For such employers, the new strategy is an indication the agency is willing to propose penalties sufficiently high to cripple them or even put them out of business.

Still, there are reasons all employers must be mindful of OSHA’s shift in strategy. First, the memoranda read like licenses for OSHA regional directors to start using howitzers rather than handguns. Prudence dictates that these licenses be taken seriously, especially for inspections prompted by a fatality or catastrophe.

Second, OSHA inspections are now more consequential than ever, especially as to employers subject to OSHA standards specific to falls, trenching, machine guarding, respiratory protection, permit required confined spaces, and lockout tagout. How seriously such an employer regards the prospect or of such an inspection can have lasting consequences.

Finally, the decision whether or not to contest an OSHA citation is now more consequential than ever. An employer must think not only of the impact which decision has as to the current citation, but the impact of the decision on a potential future citation alleging similar violations or a failure to abate the existing alleged violations.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at bob.chadwick@fmglaw.com.