This month, officials from the U.S. Department of Labor (DOL) discussed the Occupational Safety and Health Administration’s (OSHA’s) 2023 enforcement priorities. OSHA revealed its plan at an American Bar Association conference on occupational safety. Discussions centered around increased enforcement of workplace safety and illness prevention, as well as whistleblower protections. Earlier, OSHA published a final rule establishing procedures and time frames for handling whistleblower retaliation complaints.
OSHA’s Enforcement Priorities for 2023
Overall, OSHA’s 2023 enforcement priorities will focus on recent regulatory requirements, emphasis programs, and targeted enforcement programs. Highlights from the conference include:
- An expanded Severe Violator Program. The program targets employers that repeatedly expose workers to recognized hazards. Previous criteria for inclusion in the program were somewhat limited. For example, non-fatal criterion for inclusion required exposure to specific high-emphasis hazards or a highly hazardous chemical. However, the program’s expanded criteria remove that limitation and can include severe violators in industries without such limited exposures.
- More aggressive “instance-by-instance” citations. The instance-by-instance citation may apply where the rule’s language supports a citation for each instance of non-compliance. Under the policy, OSHA will cite employers for specific “high-gravity” serious violations related to lockout/tagout, falls, trenching, recordkeeping, and others, for each instance rather than grouping instances together.
- Broader settlements for corporations that cover multiple workplaces under the same employer. This policy will force employers to examine and correct safety hazards at every location the company holds. At the same time, OSHA looks to hold individuals accountable where it believes employers are abusing the corporate structure to avoid liability.
- Increased workplace inspections where employees are at greater risk of heat illness. While there is no current safety regulation for heat hazards, OSHA will target specific industries to ensure employers are protecting workers from conditions likely to cause heat illness. These industries will include construction, agriculture, landscaping, manufacturing, and warehousing. The heat illness enforcement priorities follow OSHA’s earlier heat illness National Emphasis Program launched in 2022.
To support its 2023 enforcement priorities, OSHA will increase inspections throughout the U.S. OSHA already added 200 more compliance officers in 2022, for a total of 900, but intends to increase that number this year to handle the increase in inspections.
Increasing OSHA Inspections and Employer Obligations
According to the U.S. Bureau of Labor Statistics (BLS), there were 5,190 workplace fatalities in 2021, an 8.9% increase from 4,764 in 2020. In light of these statistics and of OSHA’s heightened enforcement priorities to pursue workplace safety violators, it’s worth it to remind employers of their duty to recognize and mitigate workplace hazards. Accordingly, employers need to reassess their workplaces and processes for possible safety hazards. The General Duty Clause of the Occupational Safety and Health Act of 1970 (OSH Act) requires that all employers:
- shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; and
- shall comply with occupational safety and health standards promulgated under this Act.
To comply with the OSH Act’s General Duty Clause and avoid willful OSHA violations and costly litigation, employers should recognize and fix common workplace hazards.