Through the first month of 2023, OSHA signaled to employers that enforcement is an agency priority and that it will use a full range of mechanisms to hold employers accountable for workplace health and safety violations.

Key Takeaways

• At the start of the year, OSHA announced its highest increase in maximum civil penalties since 2016. The maximum civil penalty for each serious, other-than-serious, posting requirement, and failure to abate violation increased to $15,625 per violation, and the maximum civil penalty for each willful or repeat violation increased to $156,259 per violation.
• On January 26, 2023, the OSHA Directorate of Enforcement Programs issued two memoranda authorizing the expanded use of enforcement tools to increase the deterrent effect associated with OSHA citations and penalties.
  • The first memorandum authorizes OSHA Regional Administrators and State Plan Designees to issue “instance-by-instance” citations for a broad range of violations, including “high-gravity” serious violations of requirements of lockout/tagout, machine guarding, permit-required confined spaces, respiratory protection, falls, and trenching standards, and other-than-serious violations specific to recordkeeping. The agency’s prior policy limited the use of “instance-by-instance” citations to egregious willful citations only.
  • The second memorandum reminds Regional Administrators that they have the discretion not to group violations in certain cases to achieve a deterrent effect.
• On January 27, 2023, OSHA issued a revised Combustible Dust National Emphasis Program (“NEP”). The revised NEP evidences OSHA’s continuing commitment to inspecting facilities that generate or handle combustible dusts and adds new industries to the list of industries that may be subject to planned inspections.
• As a result of these developments, employers should expect to see increases in inspection activity and resulting penalties.

Maximum Civil Penalties

On January 12, 2023, OSHA announced that maximum civil penalties for OSHA violations would increase by approximately 7.75% to account for changes in inflation as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. Those increases were published in the Federal Register on January 13, 2023, and went into effect on January 17, 2023. 

Employers now face a maximum civil penalty of $15,625 per violation for serious, other-than-serious, posting requirement, and failure to abate violations, and a maximum civil penalty of $156,259 per violation for willful and repeat violations. The previous maximum civil penalties were $14,502 per violation and $145,027 per violation, respectively. These increases are the highest increase in OSHA maximum civil penalties since 2016. 

Application of Instance-by-Instance Penalty Adjustments

OSHA’s January 26, 2023 Memorandum on Application of Instance-by-Instance Penalty Adjustments outlines its policy on the circumstances where each instance of noncompliance will be considered a separate violation, subject to its own penalty. 

Before the issuance of this memorandum, OSHA’s longstanding policy, since 1990, was to issue “instance-by-instance” (also referred to as “violation-by-violation”) citations only for egregious willful citations. 

Now, OSHA Regional Administrators and State Plan Designees have expanded authority to issue an “instance-by-instance” citation for other-than-serious violations of OSHA standards specific to recordkeeping and “high-gravity” serious violations of OSHA standards specific to:

• Lockout/tagout,
• Machine guarding,
• Permit-required confined spaces,
• Respiratory protection,
• Falls, and
• Trenching.

In such cases, OSHA Regional Administrators and State Plan Designees have the authority to issue “instance-by-instance” citations if one or more of the following factors is present:

• The employer has received a willful, repeat, or failure to abate violation within the past five years, where that classification is current.
• The employer has failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye pursuant to the requirements of 29 CFR § 1904.39.
• The proposed citations are related to a fatality/catastrophe.
• The proposed recordkeeping citations are related to injury or illness(es) resulting from a serious hazard.

OSHA’s stated purpose in expanding the application of the policy is to provide “additional deterrence” to employers and “incentivize employers to proactively prevent workplace fatalities and injuries.” The new policy will become effective on March 27, 2023.

Exercising Discretion When Not to Group Violations

OSHA’s January 26, 2023, Memorandum on Exercising Discretion When Not to Group Violations likewise has the stated purpose of “achiev[ing] a deterrent effect.” 

This memorandum reiterates that OSHA Regional Administrators and OSHA Area Directors have the discretion to cite violations separately and not as a group, particularly “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 the memorandum acknowledges that there are some circumstances where the grouping of violations would be appropriate, it instructs that “[i]n cases where grouping does not elevate the gravity or classification and resulting penalty, then violations should not be grouped if the evidence allows for separate citations.”

Revised Combustible Dust NEP

The Revised Combustible Dust NEP outlines OSHA’s policies and procedures for “inspecting workplaces that generate or handle combustible dusts, and for determining whether such workplaces have addressed fire, flash fire, deflagration, and explosion hazards associated with combustible dusts.” It replaces a prior NEP from 2008. The Revised NEP went into effect on January 30, 2023, and will remain in effect until OSHA issues a cancellation notice.

Under the Revised NEP, the list of industries that OSHA will target for planned inspections has changed based on OSHA’s review of enforcement under the prior NEP and combustible dust incident reports. OSHA removed six industry groups that were on its prior list because they were found to have a lower likelihood of having combustible dust hazards and a lower number of potential workers exposed. OSHA added the following six industry groups because, according to OSHA, they have a higher likelihood of having combustible dust hazards or experienced combustible dust-related fatalities/catastrophes:

• Commercial Bakeries (NAICS 311812)
• Printing Ink Manufacturing (NAICS 325910)
• Cut Stock, Resawing Lumber, and Planning (NAICS 321912)
• Leather and Hide Tanning and Finishing (NAICS 316110)
• Truss Manufacturing (NAICS 321214)
• Grain and Field Bean Merchant Wholesalers (NAICS 424510)

In total, 86 industry groups will be subject to planned inspections under the revised NEP.

At worksites inspected under the Revised NEP, employers can expect OSHA to:

• Request information that is relevant to combustible dust hazards (such as any history of fires and explosions, safety data sheets, electrical area classification drawings/documents, and dust hazard analyses);
• Observe equipment, procedures, and whether there are accumulations of combustible dust; and
• In some circumstances, collect samples.

As outlined in the Revised NEP, OSHA inspectors will assess whether there are violations under a range of OSHA standards and requirements, including those for housekeeping, ventilation, personal protective equipment, electrical equipment, powered industrial trucks, welding, cutting, and brazing, warning signs, hazard communication, egress, fire protection, spray finishing, and the General Duty Clause.