As of March 27, 2023, OSHA began issuing “Instance-by-Instance” (IBI) citations for high-gravity serious violations of OSHA standards specific to:

  • Fall Prevention
  • Trenching and Excavation
  • Machine Guarding
  • Respiratory Protection
  • Permit Required Confined Spaces
  • Control of Hazardous Energy (lockout/tagout)
  • “Other-Than-Serious” violations specific to recordkeeping

These IBI citations will affect construction, general industry, maritime, and agriculture industries.

How Will OSHA Enforce This?

A decision to use instance-by-instance citations should normally be based on consideration of one or more of the following factors:

  • 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 1904.36.
  • The proposed citations are related to a facility/catastrophe.
  • The proposed recordkeeping citations are related to injury or illness(es) that occurred because of a serious hazard.

IBI citations may be applied when the text of the relevant standard allows (such as, but not limited to, per machine, location, entry, or employee), and when the instances of violation cannot be abated by a single method of abatement. This means they may issue citations for each instance of violation rather than just a single citation for failing to meet compliance standards.

How Will Penalties Change?

A separate penalty shall be assessed for each violation.

Why Did OSHA Make This Change?

OSHA issued new enforcement guidance to make its penalties more effective deterrents in stopping employers from repeatedly exposing workers to life-threatening hazards or failing to comply with certain workplace safety and health requirements.

“Smart, impactful enforcement means using all the tools available to us when an employer ‘doesn’t get it’ and will respond to only additional deterrence in the form of increased citations and penalties,” explained Doug Parker, Assistant Secretary for Occupational Safety and Health. “This is intended to be a targeted strategy for those employers who repeatedly chose to put profits before the employees’ safety, health and wellbeing.”

What Does This Mean to Me?

  • OSHA can issue multiple citations where previously, they may have only issued one.
  • Initial citation costs may climb higher than in the past, costing thousands of dollars in some cases.
  • OSHA could easily issue one citation for each worker exposed to a hazard and for each day the worker is exposed.
  • Increased frequency of focused inspections which are targeted inspections of employers who with a pattern of non-compliance.

Example 1 – PPE

If an employer has ten employees working without proper personal protective equipment (PPE), OSHA could issue 10 separate citations (one for each employee), instead of one citation for lack of PPE in general. This allows OSHA to reflect the severity and extent of the violation more accurately and to better targeted specific areas of non-compliance.

Example 2 – Lockout/Tagout (LOTO)

If an employer has 10 employees working on a piece of equipment and only one Authorized Employee has a lockout lock applied, OSHA could issue nine separate citations (one for each employee), instead of one citation for LOTO in general. This can also invite a detailed review of your LOTO procedure for other compliance details. This allows OSHA to reflect the severity and extent of the violation more accurately and to better target specific areas of non-compliance.

Remember, every employee performing maintenance or servicing of equipment must receive LOTO Authorized Employee training.

Questions – Contact the FCA Safety Line

The FCA Safety Line is a free resource for FCA members and their safety teams. Whether you’re double checking your understanding of the latest regulations, looking for quick safety answers or just want to bounce your ideas off safety professionals, the safety line is available to contributing FCA members by phone at (844) 414-SAFE or by email at safetyhelpline@finishingcontractors.org.