OSHA Memo to Affect Way Agency Issues Certain Penalties, With Potential for Significant Increases
OSHA's Director of Enforcement and Director of Construction have joined together to issue two memos to its Regional Administrators and State Plan Design...
OSHA’s Director of Enforcement and Director of Construction have joined together to issue two memos on how to interpret penalties in certain cases.
⚡ TL;DR: OSHA memos now allow instance-by-instance (separate) penalties for serious violations of Fall Protection, Trenching, Machine Guarding, Respiratory Protection, Permit-Required Confined Spaces, Lockout/Tagout, and recordkeeping standards. Instead of grouping multiple violations into one penalty, OSHA can now issue separate $15,625+ penalties for each instance. Maximum penalties for willful/repeat violations reach $156,259 per violation. This memo gives compliance officers discretion to deny penalty grouping when doing so creates a “deterrent effect.”
Instance-by-Instance Citations
High-gravity serious violations of the following standards can now be subject to Instance-by-Instance penalties: Fall Protection, Trenching, Machine Guarding, Respiratory Protection, Permit-Required Confined Spaces, Lockout/Tagout. Other-than-serious violations of the recordkeeping standard also qualify.
⚠️ The Pain Frame: Before this memo, OSHA might cite five instances of the same violation (e.g., five machines without guards) as one grouped violation = one $15,625 penalty. After the memo, OSHA can cite all five separately = five $15,625 penalties = $78,125 total. A manufacturing facility with three unguarded machines, two inadequate LOTO procedures, and four workers without proper respiratory protection documentation can now face penalties exceeding $150,000 for violations that previously might have settled at $40,000–$60,000. Instance-by-instance penalties are especially punitive for systemic deficiencies affecting multiple pieces of equipment or workers. The memo doesn’t create new violations — it multiplies the financial impact of existing violations.
Grouping Penalties
The memo reminds Regional Administrators that they have the discretion to NOT group violations together in instances where it could help create a deterrent.
OSHA Fines Increased
The maximum penalty amounts in 2023 are $15,625 per violation for serious, other-than-serious, posting requirement, and failure to abate violations, and $156,259 per violation for willful and repeat violations.
Frequently Asked Questions
Q: What does “instance-by-instance” citations mean for OSHA penalties?
A: Instance-by-instance citations allow OSHA to issue separate penalties for each violation rather than grouping multiple violations together. For serious violations of Fall Protection, Trenching, Machine Guarding, Respiratory Protection, Permit-Required Confined Spaces, and Lockout/Tagout, this approach can result in significantly higher total penalties even when violations stem from the same situation.
Q: Can OSHA choose not to group violations together?
A: Yes, the memo confirms Regional Administrators have discretion to decline grouping penalties when doing so creates a stronger deterrent effect. This means OSHA can issue separate penalties for multiple similar violations at your facility to increase the financial impact and encourage compliance.
Q: What are the maximum OSHA penalties for serious violations in 2023?
A: The maximum penalty for serious, other-than-serious, posting requirement, and failure to abate violations is $15,625 per violation, while willful and repeat violations can be penalized up to $156,259 per violation. These amounts are adjusted annually, and iSi Environmental can help your facility avoid costly citations.
Q: Which standards are most likely to result in instance-by-instance penalties?
A: Fall Protection, Trenching, Machine Guarding, Respiratory Protection, Permit-Required Confined Spaces, and Lockout/Tagout violations are specifically called out for instance-by-instance penalties when they are serious violations. Other-than-serious recordkeeping violations also qualify for this approach under the memo guidance.
Q: If we have five instances of the same violation, do we face five separate penalties?
A: Yes, under this memo. OSHA can issue instance-by-instance penalties for the standards listed, meaning each unguarded machine, each inadequate LOTO procedure, and each worker without respiratory protection documentation is a separate violation. A facility with five unguarded machines on Fall Protection grounds could face five × $15,625 = $78,125 just for that hazard category, before other violations are added.
💰 Dollar Anchor: A manufacturing facility with systemic hazards across multiple pieces of equipment or workers could historically settle for $30,000–$50,000 in grouped penalties. Under the instance-by-instance memo, the same facility could face $100,000–$200,000+ if OSHA identifies the same violation type repeated across machines, stations, or workers. This memo is a significant penalty multiplier for facilities with systemic (rather than isolated) compliance failures. A facility addressing violations systematically — replacing unguarded machines, updating all LOTO procedures, training all respiratory protection users — avoids multiplied penalties because the violations stop being systemic.
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