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OSHA rule change expands use of instance-by-instance

Dive Brief:

  • A new OSHA rule will take effect later this month authorizing OSHA regional administrators to issue new violation types as “instance-by-instance citations,” meaning the agency can issue multiple citations for specific violations where it would have in the past only issued one. 
  • OSHA regional administrators and area office directors will have the authority to cite certain types of violations as instance-by-instance citations for cases where the agency identifies “high-gravity” serious violations of standards specific to certain conditions where the language of the rule supports a citation for each instance of non-compliance. The current policy has been in place since 1990, according to OSHA.
  • As a result, lawyers told Construction Dive that some initial citations may climb higher than in the past, costing as much as hundreds of thousands or even millions of dollars in some cases. The agency could feasibly issue one citation for each worker exposed to a hazard and for each day those workers were exposed.

Dive Insight:

Under the new rule, repeat citations can be issued for incidents surrounding lockout/tagout, machine guarding, permit-required confined spaces, respiratory protection, falls, trenching and for cases with other-than-serious violations specific to recordkeeping. 

OSHA’s rule change is designed to crack down on employers that continue to fail to address hazards, the agency said.

“This is intended to be a targeted strategy for those employers who repeatedly choose to put profits before their employees’ safety, health and wellbeing,” Doug Parker, assistant secretary for OSHA, said in the announcement. “Employers who callously view injured or sickened workers simply as a cost of doing business will face more serious consequences.”

The new guidance covers enforcement activity in general industry, agriculture, maritime and construction, and becomes effective 60 days from Jan. 26.

Builder discretion advised

What do commercial contractors need to know about the new rules?

Charlie Morgan, Atlanta-based labor and employment lawyer and partner at Alston & Bird, said the rule change is largely discretionary, and therefore will likely be used by OSHA to flex its muscles in severe instances, as Parker indicated.

“You’re not going to see it presumably used often,” Morgan said. “I can speculate that they would probably apply it where there was a fatality or multiple hospitalizations … but also they may go after someone they sort of see as a repeat offender.” 

That doesn’t mean that compliant builders won’t be at risk of higher citations.

“While ‘bad actors’ may be in the agency’s crosshairs, it will be incumbent on ‘good actors’ or those who are simply not fully engaged on the compliance front, to become compliant so as to avoid additional penalties should the agency conduct an inspection,” said Ian D. Meklinsky, Princeton, New Jersey-based partner with law firm Fox Rothschild and co-chair of its labor and employment department.

Morgan said the recordkeeping aspect of the new rule could pose a potential problem. OSHA requires employers with more than 10 employees keep a record of serious work-related illnesses and injuries and maintain them for at least five years. A lack of thorough documentation could now pose a high fine, Morgan said, so contractors should ensure to document their jobsite practices well. 

Nevertheless, he said he thought the new ruling could have a positive effect, even if “bad things happen to good people.”

For Morgan, the rule won’t change the way OSHA tackles most enforcement, but rather beefs up the tools already at its disposal.

In the meantime, Meklinsky’s advice is simple: Brush up on OSHA obligations and stay compliant.