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E-Alert: OSHA’s Penalty Inflation Adjustment for 2023

OSHA’s continued efforts to deter employers from allowing unsafe working conditions has resulted in three recent changes that employers need to be aware of. On January 13, 2023, the Department of Labor (DOL) announced its annual adjusted penalties for violations of the Occupational Safety and Health Act. For background purposes, in 2015, Congress passed the Inflation Adjustment Act that requires the DOL to adjust civil monetary penalties no later than January 15 of each year by the previous year’s rate of inflation. The new adjusted penalties for OSHA violations in 2023 are below:

Next, on January 26, 2023, OSHA issued two guidance memoranda. The first memorandum allows Regional and Area Offices to cite certain types of violations as “instance-by-instance” if they are deemed “high-gravity” violations. Falls, trenching, machine guarding, respiratory protection, permit required confined spaces, lockout tagout, and other-than-serious violations of OSHA standards specific to recordkeeping are all subject to the “instance-by-instance” policy.

This is a departure from the current policy, which was limited to willful-egregious citations being subject to the “instance-by-instance” policy. The change may subject employers to more potential violations for each instance of non-compliance. OSHA stated that this “change is intended to ensure OSHA personnel are applying the full authority of the Occupational Safety and Health Act where increased citations are needed to discourage non-compliance.”

This new policy will become effective on March 27, 2023, and employers should ensure they have a plan in place to comply with OSHA standards. Lack of compliance could lead to significant monetary penalties.

Finally, on the same day, OSHA issued another memorandum reiterating the existing policy to Regional Administrators and Area Directors that gives discretion to not group violations in appropriate cases in order to encourage employer compliance with the Occupational Safety and Health Act. Grouping is normally appropriate when the same abatement measures correct multiple violations and/or when substantially similar violative conduct or conditions giving rise to the violations is involved.

This guidance on grouping violations may likely result in an increase in penalties issued. Employers should ensure compliance and determine the best course of action to avoid being issued violations for non-compliance with OSHA’s health and safety standards.

If you have questions concerning OSHA enforcement action, please feel free to contact one of our labor and employment attorneys by calling (501) 371-9999.

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