“OSHA has issued new enforcement guidance to make its penalties more effective in stopping employers from repeatedly exposing workers to life-threatening hazards or failing to comply with certain workplace safety and health requirements.”  — Department of Labor press release, January 26, 2023

There are two common complaints about OSHA citations and fines after a fatal workplace incident. One is from the employer being cited: “We got cited for violations that didn’t have anything to do with the incident.” The other is from family and activists: “Someone died on the job and the fine was just $XX,XXX. Is that all a worker’s life is worth?”

Both complaints demonstrate a fundamental misunderstanding of OSHA citations and penalties. However, family and activists can take comfort in two new OSHA policies that will allow OSHA to increase the penalties associated with OSHA violations. Likewise, chronic violators need to be on notice that the cost of doing business is going up.

The Limits of OSHA’s Punishments

Perhaps you know of someone who has been admonished, “You better do something about that or OSHA’s going to send you to jail.” If your high school civics teacher did their job, you know that OSHA (or most other government agencies) can’t “send you to jail.” It takes a judge to do that, usually with an assist from a jury of your peers, and only if a prosecuting attorney decides to pursue the case.

OSHA is limited to issuing citations, fines, and press releases. For many employers, the press releases and resulting public shaming are the worst punishment. Some employers cannot be shamed, however, so OSHA is left with fines as a deterrent to future unsafe behavior. But OSHA is limited to the size of the fines they issue. For many years, OSHA was restricted to $7,000 per violation, or $70,000 for willful or repeated violation. In November 2015, however, Congress authorized OSHA to adjust fines for inflation. The maximum penalties this year are $15,625 per violation, or $156,259 for willful or repeated violation.

The fines that OSHA issues are for violations of regulations. To a public used to seeing jury awards based on how bad things came out, there is an expectation that the worse the outcome, the bigger the fine should be. It’s the inverse of that ancient legal principal, “No Harm, No Foul.” OSHA fines, however, are not supposed to be based on the outcome of the violation, but on the violation itself. The penalty for failing to conduct required testing and inspection on piping components should be the same, whether the piping hasn’t ruptured yet, or the inspection was in response to a piping rupture that caused a fatal incident.

OSHA’s New Policies

OSHA has announced new enforcement policies to target “those employers who repeatedly choose to put profits before their employees’ safety, health, and wellbeing. Employers who callously view injured or sickened workers simply as a cost of doing business will face more serious consequences.” They go into effect on Monday, March 27, 2023.

As it happens, viewing injured or sickened workers as a cost of doing business, callously or otherwise, is not a violation of OSHA regulations or the general duty clause. “Callously viewing injured or sickened workers as a cost of doing business” is not going to appear in any citation. No, the new enforcement policies take a different approach.

The first policy encourages Regional Administrators and Area Office Directors to issue instance-by-instance citations. This means, for instance, that a facility with an inadequate permit-required confined space program could be cited for each confined space, rather than receiving a single citation for an inadequate program.

The second policy reminds Regional Administrators and Area Office Directors that they do not have to group violations, but may cite each violation individually. This is something they could always do but were discouraged from doing. Now, the gloves come off.

Instance-By-Instance Citations

It may seem that the new instance-by-instance (IBI) citation policy simply asserts authority that OSHA already had. After all, IBI citations have been around since 1990. However, the 1990 policy limited IBI to egregious, willful citations. Now, Regional Administrators and Area Office Directors don’t need to be so restrained.

The new policy specifically calls for IBI citations for

  • Falls
  • Trenching
  • Machine Guarding
  • Respiratory Protection
  • Permit Required Confined Spaces
  • Lockout-Tagout

The new policy also wants to see IBI citations for other-than-serious recordkeeping violations related to recordable injuries or illnesses that resulted from a serious hazard.

There are considerations, though, before issuing IBI citations. They include:

  • Receiving a willful, repeat, or failure to abate violation with the past five years.
  • Failure to timely report a fatality, hospitalization, amputation, or loss of eye.
  • The proposed citations are related to a fatality or other catastrophe.

Some regulations are written such that they don’t allow for IBI citations. This new policy cannot change the wording of those regulations. But regulations that do allow IBI, or don’t prohibit it, may now result in IBI citations, depending on the discretion of the OSHA administrator or director.

Grouping Violations

Regional Administrators and Area Office Directors normally group violations. They are instructed that “grouping is appropriate when the same abatement measures correct multiple violations and/or when substantially similar violative conduct of condition giving rise to the violations is involved.”

However, OSHA now wants administrators and directors to exercise discretion in grouping when they believe that employers “flagrantly” disregard their responsibilities. It becomes a way around penalty maximums when that’s what OSHA believes is necessary to make a point and deter future violations.

Discretion

Sidney Dekker observed that the assurance, “You have nothing to fear if you’ve done nothing wrong,” was not true. Instead, the truth is closer to “You have nothing to fear if we decide you’ve done nothing wrong.” It’s not in the doing, but the deciding, where the potential for punishment lies.

It is a pervasive feature of the legal system that punishment depends on the discretion of the enforcer. Traffic police decide who they will and who they will not pull over. Prosecuting attorneys decide who they will and who they will not charge with a crime. And OSHA managers decide which violations will receive IBI citations and which will be grouped. People accept the discretion of enforcement when it doesn’t affect them or when it works in their favor. They resent it, however, when it works against them, arguing that it is arbitrary and capricious, and as far as they are concerned, unjust.

The new OSHA policies encourage OSHA managers to use their discretion. Not to lessen punishments, but to increase them. Most employers won’t notice, but those that do are going to feel like they are being unjustly punished. OSHA, on the other hand, will insist that these employers are putting profits over safety, and that this is what it takes to deter future violations.

Don’t Be That Guy

There is no workplace that is in perfect compliance with OSHA’s regulations. A determined OSHA inspector could visit any workplace and find violations. In the best of cases, the inspector will note where improvement could be made and the employer will thank them for their help, and happily agree to mitigate the issue. Resources are dedicated to improving safety and not to paying fines.

In the worst of cases, an employer’s imperfect compliance is deliberate, a bet that with just one inspector per 59,000 employees, the odds favor that they’ll never get caught, and if they do, they’ll be able to bluff or bully their way out, or just pay the fine as a cost of doing business.

In some cases, however, the employer will get their back up, believing they’ve done nothing wrong. It might be because the inspector seems vindictive or ill-informed (and they might be—inspectors are human, too), or the employer may have wrongly concluded that “surely, the regulation doesn’t apply to me.” These interactions could easily lead to the violations being considered flagrant. It may have nothing to do with putting profits over safety. But at that point, the harm will be done. That employer will now be in OSHA’s crosshairs.

Don’t be that guy.