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On January 26, 2023, the Occupational Safety and Health Administration (OSHA) released a memorandum expanding the application of instance-by-instance (IBI) citations. The new policy is expected to become effective in late March and applies to general industry, agriculture, construction and the maritime industries.

Since 1990, IBI citations have been limited to those that are willful. The expanded policy allows OSHA to issue IBI citations for “high-gravity serious violations” of OSHA standards that are specific to falls, trenching, machine guarding, respiratory protection, permit-required confined spaces, lockout tagout, and other-than-serious violations of OSHA standards specific to recordkeeping. 

OSHA’s intent is to motivate employers to be more proactive in preventing workplace fatalities and injuries. The use of instance-by-instance citations should be based on 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 the classification is current.

• The employer has failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye pursuant to requirements of 29 CFR 1904.39.

• Proposed citations are related to a fatality/catastrophe.

• The proposed recordkeeping citations are related to injury or illness that occurred as a result of a serious hazard.

IBI violations will be reviewed by an OSHA regional administrator and the Regional Office of the Solicitor prior to issuance of any IBI citations.

The expansion of IBI citations may lead to a significant increase in proposed fines for employers. Under the current policy, an OSHA inspector could group multiple incidents as a single violation with a single fine. Under the expanded IBI citation policy, OSHA may now cite each violation separately with a fine for each incident. 

OSHA issued an enforcement memorandum to regional administrators and area directors reiterating that they have discretion to not group violations in appropriate cases to achieve a “deterrent effect.” Specifically, OSHA may use its discretion not to group violations when there is “evidence that worksite conditions giving rise to violations are separate and distinct or where different conduct gave rise to the violations.”

Employers should review their safety practices to avoid hefty fines when this expanded policy takes effect in late March. If you have any questions, please email the Employers Council Member Experience Team.