As we head into 2023, employers can expect to see more aggressive OSHA enforcement. BNA reported that the number of OSHA inspectors grew 19% in the fiscal year 2022. This was not surprising given the significant increase to OSHA’s FY 2021 budget, which earmarked funds to hire new OSHA inspectors. Moreover, the Biden administration has requested 701 million for OSHA in the fiscal year 2023, which is approximately $89 million more than OSHA received in 2022, so increased hiring and more frequent inspections are likely to continue past 2023.
In addition, OSHA announced last month new enforcement guidance which would effectively increase the number of citations it can issue and, thus, likely to result in greater penalties following inspections. In the guidance, OSHA expanded its application of instance-by-instance (IBI) citations to high-gravity serious violations. Previously, IBI citations were normally applied to willful violations. After March 26, 2023, OSHA can issue IBI citations for high-gravity serious violations of certain standards, e.g., falls, trenching, machine guarding, respiratory protection, permit-required confined space, lockout-tagout and for other-than-serious violations of standards specific to recordkeeping. Thus, for example, if OSHA discovers a violation of a machine guarding standard, OSHA is likely to issue a separate citation for each instance, as opposed to a single citation for multiple instances. OSHA also reiterated its authority not to group violations and instead to cite violations separately.
The new guidance will undoubtedly result in more citations and greater total penalties for employers. OSHA claims the new guidance will help incentivize employers to provide a safe working environment by acting as a deterrence. An earlier version of Biden’s Build Back Better plan proposed to increase OSHA penalties for serious violations up to $70,000. It appears OSHA is trying to accomplish the same basic objective that Congress rejected.