New OSHA memos on instance-by-instance and grouping citations

In January 2023, OSHA published two memos on citations that could result in higher fines for employers. One memo covers “instance-by-instance” citations where, for example, OSHA may issue one citation for each employee not using fall protection. The other memo covers “grouping” citations where doing so would increase the gravity and penalty.

Instance-by-instance

Where an inspection finds a high-gravity serious violation involving certain conditions, OSHA may issue separate citations for each instance. This would not be used with all regulations, however. Covered conditions include lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching, and cases of other-than-serious violations specific to recordkeeping.

Instance-by-instance citations might be applied per machine, entry, or employee, and when each instance cannot be abated by a single method. The memo notes that compliance officers using instance-by-instance citations should consider one or more of the following factors:

• The employer received a willful, repeat, or failure to abate violation within the past five years.
• The employer failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye per 29 CFR 1904.39.
• The proposed citations are related to a fatality/catastrophe.
• The proposed recordkeeping citations are related to an injury or illness caused by a serious hazard.

This guidance becomes effective March 27, 2023. The former policy adopted in 1990 applied only to egregious willful citations.

Grouping citations

In another memo, OSHA reminded Regional Administrators that they need not group violations, and could cite separately. Specifically, the memo states, “In cases where grouping does not elevate the gravity or classification and resulting penalty, then violations should not be grouped if the evidence allows for separate citations.”

The memo noted that grouping would be appropriate when the same abatement measures correct multiple violations. The memo further states that grouping should be considered when:

• Two or more serious or other-than-serious violations constitute a single hazardous condition that is overall classified by the most serious item,
• Two or more other-than-serious violations considered together create a substantial probability of death or serious physical harm, or
• Two or more other-than-serious violations results in a high gravity other-than serious violation.

OSHA would not, however, group citations from multiple inspections of the same establishment, nor group violations from inspections of several different establishments.