The federal safety agency recently unveiled new initiatives aimed at “impactful enforcement . . . in the form of increased citations and penalties.” Changes to how the Occupational Safety and Health Administration (OSHA) uses subpoenas, issues instance-by-instance citations, and groups violations will directly impact employers.
The federal safety agency intends to adopt a regulation in June 2023 addressing the use of subpoenas during OSHA investigations. Currently no draft of the proposed regulation is available to the public. Because OSHA has proposed the new regulation as an interim final rule (IFR), it will take effect without prior public input. IFRs are generally only used when an agency has good reason for not following the usual rulemaking process, e.g., in a time-sensitive situation. OSHA has not publicized its reasons for attempting to avail itself of the IFR procedures. Once the IFR is published, the agency will likely then solicit public comment, albeit while the regulation is already in effect.
In support of the regulation, OSHA points to “recurrent issues” that “lead to time-consuming disputes between the agency and employers.” The new regulation purportedly seeks to “provide helpful clarity to the agency and the regulated public . . . while promoting . . . uniform subpoena practice across the agency.” However, it is unclear what “recurrent issues” led to the creation of a new regulation, and the OSHA Field Operations Manual (FOM) already provides precise guidelines related to subpoenas served by OSHA.
One change that would likely be welcome to employers is an increase in the number of days an employer is given to provide documents in response to a subpoena. The FOM states OSHA subpoenas should “normally allow five working days” for the production of responsive material, but such a short turnaround time makes it very difficult for employers to retain counsel, gather/review documents, and provide a suitable response.
Depending on the actual text of the IFR, it is possible employers may see an increase in subpoenas issued by OSHA as part of the agency’s investigations.
Under a new policy that goes into effect in late March 2023, OSHA will allow “instance-by-instance” (IBI) citations to be issued in cases where the agency identifies "high-gravity" serious violations of OSHA standards. According to OSHA, these cases include “lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching and for cases with other-than-serious violations specific to recordkeeping.” Previously, IBI citations could only be issued for alleged willful violations that the agency classified as egregious.
A decision to issue an IBI citation under the new policy will “normally” include consideration of the following factors:
This expansion of violations that OSHA considers egregious may lead to increased fines for employers. According to OSHA, this change is needed to discourage noncompliance and “ensure OSHA personnel are applying the full authority of the Occupational Safety and Health Act.”
OSHA also issued a separate memorandum reminding regional administrators and area directors of their authority “to not group violations in appropriate cases to achieve a deterrent effect.” According to OSHA, citing violations separately is a way to “more effectively encourage employers to comply with the intent of the OSH Act.”
The memorandum directs that in cases where grouping multiple violations will not “elevate the gravity or classification and resulting penalty,” such violations should not be grouped if the evidence allows for separate citations. OSHA personnel are also directed that “discretion may be used to cite separately” even where an existing directive encourages grouping.
OSHA appears poised to step up its investigation and enforcement activity against employers in the coming months.
Employers should watch for further updates about the subpoena IFR, and should retain counsel as early as possible for any OSHA investigation. Retaining skilled legal counsel early to assist with navigating an OSHA investigation and/or citation should be top of mind for any employer, especially those in industries OSHA heavily targets for enforcement activity.
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