January 26, 2023

MEMORANDUM FOR:

REGIONAL ADMINISTRATORS

THROUGH:

AMANDA EDENS
Deputy Assistant Secretary

FROM:

KIMBERLY A. STILLE, Director
Directorate of Enforcement Programs

SCOTT C. KETCHAM, Director
Directorate of Construction

SUBJECT:

Exercising Discretion When Not to Group Violations

This memorandum is intended to reiterate existing policy that allows Regional Administrators and Area Directors discretion to not group violations in appropriate cases to achieve a deterrent effect. In particular, the agency may refrain from grouping violations where there is evidence that worksite conditions giving rise to the violations are separate and distinct, or where different conduct gave rise to the violations.

This enforcement discretion is an important tool in OSHA's arsenal that helps deter employers from flagrantly disregarding their responsibilities to protect workers and comply with OSHA standards and regulations. Proposed OSHA enforcement activity may lose its deterrent effect when citations are grouped. Regional Administrators and Area Directors may therefore exercise discretion where the evidence allows violations to be cited separately without grouping, when appropriate to achieve an adequate deterrent effect. This enforcement approach not only enhances deterrence, but also more accurately captures an employer's overall lack of compliance.

The Field Operations Manual (FOM Chapter 4-Violations, Section X. Combining and Grouping Violations) and several other compliance directives provide scenarios where grouping violations should normally be considered. Grouping is 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. Grouping violations should be considered when:

• - two or more serious or other-than-serious violations constitute a single hazardous condition that is overall classified by the most serious item
• - grouping two or more other-than-serious violations considered together create a substantial probability of death or serious physical harm, or
• - grouping two or more other-than-serious violations results in a high gravity other-than serious violation.

In cases where grouping does not elevate the gravity or classification and resulting penalty, then violations should not be grouped if the evidence allows for separate citations. In situations where an existing directive encourages grouping, discretion may be used to cite separately, such as but not limited to, in cases where violations have differing abatement methods, each violative condition may result in death or serious physical harm, and each violative condition exposes workers to a related but different hazard. Area Offices shall document decisions not to group violations in the case file when discretion is used to achieve an additional deterrent effect.

If you have further questions concerning this memorandum, please contact the Directorate of Enforcement Programs at (202) 693-2100 or the Directorate of Construction at (202) 693-2020.