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OSHA to Expand the Use of Instance-by-Instance Penalties

March 31, 2023
OSHA's new policy could significantly increase the monetary penalty amounts associated with certain violations.

A new OSHA policy has gone into effect expanding penalties for instance-by-instance (IBI) citations. The move has the potential to significantly increase the monetary penalty amounts associated with certain violations and signals OSHA’s stated commitment to increased enforcement in 2023 and beyond.

IBI citations are those for which OSHA could issue multiple citations, with corresponding penalties, for each instance of alleged non-compliance—separate penalties for each machine, each location, each entry, each employee. Under OSHA’s prior policy, which was in place since 1990, OSHA would only apply IBI penalties for willful citations, or situations when an employer knowingly fails to comply with a legal requirement or acts with plain indifference to employee safety.

Under the new policy, which went into effect on March 27, the IBI policy will now apply to high-gravity serious violations in the following areas:


 Machine guarding

 Respiratory protection

 Lockout tagout

 Permit required confined space


 Other-than-serious violations specific to recordkeeping.

A serious violation can occur when the workplace hazard could cause an accident or illness that would most likely result in death or serious physical harm, unless the employer did not know or could not have known of the violations. High-gravity violations are those that have a high risk of severe injury and a high probability of occurrence.

The areas of focus listed above are common standards applicable across the manufacturing industry. In addition, many of them regularly appear on OSHA’s top 10 list of most cited standards. Under the prior IBI policy, a manufacturer that fails to have proper machine guarding on all of its machines on a factory floor might be cited for one violation. Under the new policy, the penalty amount could be significantly multiplied to account for the number of machines and/or the number of employees potentially at risk.

While the new IBI policy will focus on high-gravity serious violations in the above areas, it will also apply to other-than-serious recordkeeping violations. Therefore, employers with certain types of recordkeeping violations could find themselves subject to significant penalties for failures to record or inaccuracies in the records.

In deciding whether to apply the new IBI policy, OSHA will consider certain factors, such as:

 Whether the employer has received a willful, repeat, or failure to abate violation within the past five years;

 Whether the employer has failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye;

 Whether the proposed citations are related to a fatality/catastrophe; and

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

OSHA intends to use the new IBI policy to deter employers from maintaining or failing to fully abate certain violations and hopes that it will encourage employers to be proactive in preventing workplace fatalities and injuries.

On the same day that OSHA announced the new IBI policy, it also released a memorandum reminding OSHA offices of their discretion to not group violations, particularly when (1) violations have a different abatement method, (2) each condition could result in death or serious physical harm, and (3) each condition exposes workers to a related but different hazard. The grouping decisions are also intended to have a deterrent effect on employer behavior.

Megan Baroni, Esq., is a partner at law firm Robinson+Cole, specializing in environmental, health and safety issues. She frequently represents manufacturers and distributors and contributes to the firm’s Manufacturing Law Blog.

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