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February 2023: OSHA Increases Penalties and Issues New Enforcement Guidance

15 Feb

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Update Applicable to:
All employers.

What happened, and what are the details?
OSHA annually adjusts its penalties for inflation. The adjustments are effective for penalties assessed after January 15, 2023. The new maximum penalty for serious, other-than-serious, and posting requirements is $15,625 per violation. The new maximum penalty for failure to abate (correct safety violation) is $15,625 per day beyond the abatement date. The new maximum penalty for willful or repeated violations is $156,259 per violation.

Effective March 27, 2023, OSHA Regional Administrators and Area Directors will now have the authority to cite certain violations as “instance-by-instance” (IBI) citations. These IBI citations can be issued for “high-gravity” serious violations of standards specific to certain conditions. These include lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching, and cases with other-than-serious violations specific to recordkeeping. The new guidance covers enforcement activity in general industry, agriculture, maritime and construction industries. Previously, IBI citations applied only to willful citations. 

In practical terms, the new guidance permits OSHA to increase proposed fines. In the past, OSHA often grouped several incidents into one violation and issued a single proposed penalty. Now OSHA is authorized to cite each incident as a separate violation with a proposed penalty. For instance, instead of being cited for one combined serious violation with a proposed penalty of $15,625, OSHA can issue three citations for three incidents (e.g., three machines without machine guarding) with a proposed penalty of $46,875. OSHA will issue a press release after issuing IBI citations against an employer.

For more information, please see the links below:

U.S Department of Labor News Release

Article 1Article 2

What do employers need to do?
Employers should review the links provided above and the OSHA safety standards to ensure they are up to date with OSHA policies and retain counsel as soon as possible if served with a subpoena from OSHA.

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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