The Occupational Safety and Health Administration (OSHA) recently released two memos instructing enforcement officers on “instance-by-instance” citations and de-grouping violations to deter infractions. 

OSHA’s prior policy on instance-by-instance citations, published in 1990, applied just to willful citations. The new guidance identifies several scenarios where such citations may be issued, including high-gravity serious violations specific to falls, trenching, machine guarding, respiratory protection, permit required confined space, lockout tagout, and other-than-serious violations specific to recordkeeping. OSHA states that a more expansive application of instance-by-instance citations “will incentivize employers to proactively prevent workplace fatalities and injuries and provide OSHA another tool to use on its mission to ensure safe and healthful working conditions for America’s workforce.” 

Similarly, OSHA released a memo reiterating existing policy that allows staff to de-group violations. The de-grouping memo reminds OSHA staff of its “discretion to not group violations in appropriate cases to achieve a deterrent effect” and warns that “OSHA enforcement activity may lose its deterrent effect when citations are grouped.” Despite the emphasis on de-grouping violations to promote deterrence, the memo also states that Grouping violations should be considered when:

  • Two or more serious or other-than-serious violations may overall be classified by the most serious item;
  • Grouping two or more other-than-serious violations considered together create a substantial probability of death or serious physical harm; or
  • Grouping two or more other-than-serious violations results in a high gravity other-than serious violation.

These two new directives signal OSHA’s intent to be more aggressive with respect to enforcement. Employers should therefore prepare for more aggressive enforcement action from OSHA and ensure their current health and safety policies are up-to-date and implemented in accordance with applicable standards.