New OSHA Citation Guidance – Instance by Instance

OSHA released a few days ago a memorandum on new proposed citations for general industry and to focus on specific criteria such as respiratory program, lockout tagout, and more. What is instance by instance? Simply stating it is every time it has occurred or every person that has implemented the uncompliant function. This new Instance-by-Instance Penalty Adjustments policy outlined in this memorandum will become effective 60 days from the date of issuance of this memorandum.

The guidance provided is part of OSHA’s enforcement policy and shall generally be applied for the purpose of additional deterrence to employers meeting the criteria set forth below. Regional Administrators and Area Directors can exercise discretion to depart from this IBI (Instance by Instance) policy in cases where IBI penalty adjustments do not advance the deterrent goal of this memo.

A decision to use instance-by-instance citations should normally be based on consideration of one or more of the factors listed below. The factors to be considered include:

  • The employer has received a willful, repeat, or failure to abate violation within the past five years where that classification is current.
  • The employer has failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye pursuant to the requirements of 29 CFR 1904.39.
  • The proposed citations are related to a fatality/catastrophe.
  • The proposed recordkeeping citations are related to injury or illness(es) that occurred as a result of a serious hazard.

Instance-by-instance citations may be applied when the text of the relevant standard allows such as, but not limited to, per machine, location, entry, or employee), and when the instances of violation cannot be abated by a single method of abatement. When an inspection may result in instance-by-instance violations, each instance should be documented thoroughly, e.g., type of material being processed, equipment, facility conditions, human factors, personal protective equipment, etc. 

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