OSHA Instance by Instance Violations: Updates

Property & Casualty, Risk

On January 26, 2023, the Occupational Safety and Health Administration (OSHA) issued an Enforcement Memo regarding the application of “Instance by Instance (IBI) Penalty Adjustments” to take effect on March 26, 2023. Under this new policy, OSHA has expanded their ability to cite instance-by-instance violations specific to falls, trenching, machine guarding, respiratory protection, permit required confined space, lockout tagout and other than serious violations specific to recordkeeping. Before this expansion, OSHA would cite only “egregious violations” on an instance-by-instance basis.

This expansion has the potential to affect a large scope of employers, as the updated guidance applies to general industry, agriculture, maritime, and construction industries.

What Are Instance-by-Instance Violations?

An IBI violation is a type of OSHA citation that applies to “high-gravity serious violations”. An example of an instance-by-instance violation is employee Personal Protective Equipment (PPE) noncompliance. The IBI rules allow OSHA to cite each individual observed not wearing proper PPE, thus resulting in higher fines.

When Will OSHA Cite on an Instance-by-Instance Basis?

OSHA will cite IBI violations in certain situations:

  1. Catastrophic injuries/fatalities;
  2. Employer’s failure to report fatalities, inpatient hospitalizations, or amputations in accordance with OSHA’s required reporting period under 1904.39
  3. Employer’s willful, repeat, or failure-to-abate violations within the past 5 years.

IBI citations for injury and illness recordkeeping violations will be based on improperly recorded injuries or illnesses resulting from high-gravity serious violations.


The impact of OSHA’s new directive on IBI violations has the potential to result in more frequent citations and higher fines, and ties into OSHA’s recent updates to the Severe Violator Enforcement Program (SVEP). The SVEP now affects a wider scope of employers and has a broadened definition of a “Severe Violator”.

IBI citations put employers at high risk for placement in OSHA’s SVEP and on the public severe violator list. Once an employer is in OSHA’s SVEP, it is difficult to be removed. Employers must satisfy all of OSHA’s specific requirements for at least three years in order to be removed. In addition, there are many direct and indirect consequences associated with being placed in the program, including damaged public reputation, difficultly in acquiring new business, and increased OSHA inspections.

Key Takeaways:

On March 26th, 2023, OSHA implemented new “instance-by-instance” (IBI) citation policies and enforcement. The update applies to general industry, agriculture, maritime, and the construction industry where implemented. With the elevated risks associated with IBI citations, organizations of all types would be well-served to review their risk management and OSHA reporting procedures to avoid the increase in fines and an increased risk of being placed within OSHA’s Severe Violator Enforcement Program.

Reach out to your M3 account executive or risk manager if you have any questions.

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