| Record Type:
| Directive Number:
| Old Directive Number:
||Handling of Cases To Be Proposed for Violation-By-Violation Penalties
| Information Date:
OSHA Instruction CPL 2.80 October 21, 1990 Directorate of Compliance Programs
Subject: Handling of Cases To Be Proposed for Violation-By-Violation
A. Purpose. This instruction establishes procedures for identifying and
handling cases proposed for citation using the additional penalty factor,
provided for in the Field Operations Manual (FOM), Chapter VI, B.2.). (4).
The procedures set forth in this instruction will be adopted into the FOM.
B. Scope. This instruction applies OSHA-wide.
1. OSHA Instruction CPL 2.45B, June 15, 1989, Revised Field
Operations Manual (FOM).
2. OSHA Instruction CPL 2-2.38B, August 15, 1988, Inspection
Procedures for the Hazard Communication Standard.
3. OSHA Instruction CPL 2-2.46, January 5, 1989, 29 CFR 1913.10(b)
(6): Authorization and Procedures for Reviewing Specific Medical Records to
Verify Compliance with 29 CFR 1904.
1. Memorandum from John B. Miles, dated November 20, 1986; Subject:
Cases proposed for Citation Using Additional Penalty Factor.
2. Memorandum from Leo Carey, dated June 15, 1987; Subject:
Procedures for Handling Potentially Extensive Recordkeeping Violations:
E. Action. Regional Administrators and Area Directors shall ensure that
the procedures established in this instruction are adhered to in the handling
of cases in which the additional penalty factor is proposed.
F. Federal Program Change. This instruction describes a Federal Program
Change which affects State programs. Each Regional Administrator shall:
1. Ensure that this change is promptly forwarded to each State
designee using a format consistent with the Plan Change Two-way Memorandum in
Appendix F, OSHA Instruction STP 2.22A, CH-2.
2. Explain the technical content of this change to the State
designee as requested.
3. Advise the State designees that OSHA has determined that the
violation-by-violation citation and penalty policy is an integral part of its
nation-wide overall compliance strategy and, therefore, States are required
to either adopt OSHA's policy or an alternative "at least as effective as"
policy for application to the private sector. States may, but are not
required to, extend the policy to their public sector programs.
4. Ensure that State designees are asked to acknowledge receipt of
this Federal program change in writing to the Regional Administrator as soon
as the State's intention is known, but not later than 70 calendar days after
the date of issuance (10 days for mailing and 60 days for response). This
acknowledgment must include:
a. The State's plan for adopting identical procedures for
documenting and reviewing violation-by-violation cases, adapted as
appropriate to reference State law, regulations and administrative
b. The State's plan for developing alternative procedures to
those in this instruction which are as effective; or
c. The reasons why it is not necessary for the State to adopt
the Federal procedures.
5. Ensure that the State designees submit State plan supplements in
response to this instruction, which will be incorporated into the OSHA Field
Operations Manual with the next FOM change instruction.
While States must adopt this change within six months of
issuance, plan change documentation, through State FOM plan change
supplements, is not required to be submitted more than twice a year in
response to OSHA's incorporation of Federal program changes in the
a. If the FOM changes are issued on their next target date
(April 1 or October 1), the States shall have 6 months from the change
instruction issuance date to submit a plan supplement in response to the FOM
b. If an FOM change is not issued within six months of the date
of this instruction, the State shall inform the Regional Administrator of its
adoption of this change by submitting documentation describing the State's
procedures and implementing instructions. This documentation must be
submitted by the close of the calendar quarter following the next FOM change
target date which affords the State a 6-month period for implementing the
change. However, a formal plan supplement will not be required until
issuance of the next Federal FOM change.
6. Advise the State designees to notify their Regional
Administrators when they plan to issue violation-by-violation citations and
penalties. At the State's request, OSHA will provide assistance in reviewing
cases involving violation-by-violation citations and penalties. Regional
Administrators will coordinate this review. The review of such cases
involving recordkeeping violations similarly may be coordinated with the
Bureau of Labor Statistics (BLS) through the Regional
7. Review policies, instructions and guidelines issued by the State
to determine that this change has been communicated to State compliance
G. Background. Over the past several years, in a limited number of cases
OSHA has alleged a separate violation and proposed a separate penalty for
each instance of noncompliance with OSHA recordkeeping regulations, with the
safety and health standards, and with the General Duty Clause [Section
5(a)(1) of the Occupational Safety and Health Act (the Act)]. The resulting
large aggregate penalties are part of a compliance strategy which improves
the efficiency and effectiveness of the agency and conserves its limited
resources. This instruction is intended to serve as the master document
covering the procedures applicable in cases where the violation-by-violation
citation and penalty provisions are employed.
1. In the context of the Act, penalties are intended to provide an
incentive to employers to prevent safety and health violations in their
workplaces and to correct such violations which do exist
2. The Act intends that this incentive be directed not only to an
inspected employer but also to any employer who has hazards and violations of
standards or regulations.
a. The large proposed penalties that accompany
violation-by-violation citations are not, therefore, primarily punitive nor
exclusively directed at individual sites or workplaces; they serve a public
policy purpose; namely, to increase the impact of OSHA's limited enforcement
b. The criteria contained in this instruction are intended to
ensure that when they are proposed, large penalties serve this public
3. Large proposed penalties result from application of existing FOM
penalty calculation guidelines; but, instead of grouping or combining
violations for penalty purposes, each instance of noncompliance is considered
a separate violation and a penalty applied separately. This procedure is
known as the egregious or violation-by-violation penalty procedure.
a. Application of these procedures is appropriate in situations
where the violations in question constitute willful violations of OSHA
standards or regulations or of the general duty clause of the Act and meet
certain criteria to be discussed later in this instruction at
b. Since large penalties are likely to result in investigation
and widespread public attention, review at the Regional and National Offices
of OSHA and the Office of the solicitor of Labor (SOL) is currently
c. In all other respects, such cases are handled in accordance
with the FOM.
4. While this practice of citing each violative instance as a
separate violation has been utilized by the agency only since 1986, OSHA is
authorized to use this approach by the language of the statute, its
legislative history, and the agency's historic role as the sole prosecutor of
violations occurring under the Act.
5. In these cases, as in all other cases, violation-by-violation
citations and penalties are proposed by the Area Director.
1. Early Identification of Cases. It is important that the Area
Director identify cases which may be appropriate for violation-by-violation
treatment as early as possible.
a. Meticulous documentation of evidence for each violation and
appropriate involvement of such technical specialists as may be required for
investigation is essential to the successful pursuit of potential egregious
b. Coordination with the Regional and the National Offices must
be scheduled in time for comprehensive review before the expiration of the
statutory 6-month citation period.
c. Early involvement of the Regional solicitor's office will
ensure adequate legal, evidentiary, and resource coordination.
2. Criteria. In general, this instruction identifies those
conditions which normally constitute a flagrant violation of the Act or OSHA
standards or regulations such that violation-by-violation handling is
a. The criteria given in the following section shall be used by
the Area Director to determine whether to recommend the use of
violation-by-violation citations and penalties.
b. Cases under consideration for such treatment must be
classified as willful (category (1) below) as well as at least one of the
categories given in (2) through (7).
(1) The employer is found in violation of an OSHA requirement:
(a) Of which she/he has actual knowledge at the time of the
violation. Such knowledge may be demonstrated through previous citation
history, accident experience, widely publicized agency enforcement, direct
evidence of specific recognized jobsite hazards or other appropriate
(b) Intentionally, through conscious, voluntary action or
inaction, having made no reasonable effort to eliminate the known
(2) The violations resulted in worker fatalities, a worksite
catastrophe, or a large number of injuries or illnesses.
(3) The violations resulted in persistently high rates of worker
injuries or illnesses.
(4) The employer has an extensive history of prior violations of
(5) The employer has intentionally disregarded its safety and
(6) The employer's conduct taken as a whole amounts to clear bad
faith in the performance of his/her duties under the Act.
(7) The employer has committed a large number of violations so
as to undermine significantly the effectiveness of any safety and health
program that might be in place.
3. Penalty Calculation. Penalties for safety and health violations
are to be calculated in accordance with the gravity-based penalty procedures
in Chapter VI of the FOM. (Since egregious cases involve willful violations,
the procedures of B.7.a. generally apply except as noted below.)
a. A separate gravity-based penalty shall be calculated for
(1) In calculating penalties for each violation, the particular
factors associated with that discrete violation shall be used conservatively
to calculate a gravity-based penalty; e.g., the number of workers exposed
will be low since each violation is to be penalized
(2) The adjustment factor for size shall be applied, if
applicable. Factors for good faith and history will normally not be
b. The following additional guidelines are provided to assist
in calculating penalties for recordkeeping or similar
NOTE: Only the current and the two previous calendar
years are subject to the violation-by-violation penalty procedures in the
case of recordkeeping violations (unless the company entered a corporate-wide
settlement agreement on recordkeeping) The Regional Administrator may further
limit the scope based on resource availability.
(1) How many violations are involved and how extensive is the
(a) Where the total number of violations is less than 20%
of the total number of OSHA-200 log entries for the year, assign a numerical
weight of 1 "for number of employees exposed."
(b) Where the total number of violations exceeds 20% but is
not more than 50%, assign a numerical weight of 2 for "number of employees
(c) Where the total number of violations exceeds 50%,
assign a numerical weight of 3 for the "number of employees
(2) How many of the violations were unreported or misrecorded?
(a) If the violation results because a record required to
be kept was not made, assign a numerical weight of 3 under "frequency of
(b) If the violation resulted because a required record was
improperly kept, assign a numerical weight of 1 to 3, under "frequency of
exposure," depending on the significance of the
1 For example, if an injury was recorded as an injury
without lost workdays when it actually did result in lost workdays, assign a
2 If, on the other hand, an injury was correctly
recorded as a lost workday case but the number of days was incorrectly
recorded, assign a 1.
(3) Did the recordkeeping violation relate directly to the
safety and health conditions in the plant? Assign a numerical weight of
between 1 and 3 under "employee proximity", depending on the strength of that
(4) The following two factors shall be averaged and the result
(rounded down to the nearest whole number) entered under
(a) How much does the lost workday injury (LWDI) rate
change if the unrecorded cases are included in a
1 If the rate doubles (or more) upon recalculation,
assign a weight of 3.
2 If, upon recalculation, the rate does not double,
assign a weight of 1.
(b) Were the unrecorded injuries serious, investigated by
the company, or the subject of workers' compensation
1 If the majority were of a serious nature, or the
subject of workers' compensation claims, and not thoroughly investigated by
the company, assign a numerical weight of 3.
2 If a minority of injuries were of a serious nature,
the company did investigate, and workers' compensation was not heavily
involved, assign a weight of 1.
(5) The following factors shall be averaged and the result
(rounded down to nearest whole number) entered under "other
(a) What is the character of the company's safety and
health history? Does the company's program include training, given to
employees and supervisors, regarding compliance with the
1 Assign a rating of 3 if over all history is weak and
training is lacking.
2 Assign a rating of 1 if some evidence exists of
training; and the company's history does not reveal a pattern of disregard
for safety and health.
(b) Any other significant factors relevant to the violation
shall be considered and assigned a value of 1 to 3 depending on their impact
on the flagrancy of the violation.
NOTE: No severity factor shall be used in
(6) Following evaluation of the above-mentioned items, an
average value or weight of all the factors shall be calculated and rounded
down to the nearest whole number, thereby providing the gravity-based penalty
to be used in the violation-by-violation penalty calculation.
c. Guidance on penalty calculation for violations of the hazard
communication standard is provided in the FOM, Chapter IV, and in OSHA
Instruction CPL 2-2.38B.
d. What will constitute separate violations for purposes of
applying the violation-by-violation penalty procedures will depend on several
(1) In cases involving violations of OSHA standards, the
standard language must support citation of separate violations. For
(a) 29 CFR 1926.21(b) (2) is a requirement for the employer
to train each employee in safety and health. For each employee not so trained
there is a separate violation of the standard.
(b) 29 CFR 1910.217(c)(1)(i) is a requirement for a point
of operation guard for a mechanical power press. Consequently, each
mechanical power press unguarded point of operation found is a separate
violation of the standard.
(c) 29 CFR 1910.1000(a)(2) limits the exposure of each
employee to air contaminants regulated in Table Z-1-A. Thus each employee
exposed above the 8-hour time weighted average for a regulated substance
constitutes a separate violation of the standard.
(d) 29 CFR 1910.1000(e) requires the implementation of
engineering and work practice controls to reduce employee exposure to air
contaminants. With respect to engineering controls, a separate set of
controls must be installed at each identifiable source of air contamination.
Thus a separate violation exists for each identifiable source of air
contamination to which engineering controls have not been applied
irrespective of the number of employees overexposed.
NOTE: Since overexposures and engineering controls are
two separate violation types, a violation-by-violation citation and penalty
may be issued for each.
(2) Substantially similar violative conditions cannot be
penalized on a violation-by-violation basis under two different standards.
(a) 29 CFR 1910.1001(c) prohibits exposure of any employee
to airborne concentration of asbestos in excess of 0.2 fibers per cubic
centimeter of air (8 hr TWA). Hence each employee overexposed constitutes a
(b) 29 CFR 1910.1001(g) (1) requires employers to provide
respirators to employees overexposed to asbestos and to ensure their use
whenever they are required; e.g., in cases where airborne concentrations of
asbestos exceed the PEL.
1 Employees without respirator protection have already
been cited for overexposure under 29 CFR
2 Respirators are required for that very reason. Thus
violation-by-violation penalties for each overexposed employee would be
tantamount to a second penalty for substantially the same violative condition
and would be inappropriate.
(c) 29 CFR 1910.1001(g)(2) requires that the employer
select the appropriate respirator according to Table 1. For the same reason
as given in subparagraph (b) 1 above, respirators with the incorrect filters
cannot be penalized using violation-by-violation penalty procedures when
airborne concentrations exceed the PEL.
(d) When airborne concentrations exceed 50 x PEL and only
half-mask respirators are used, the violation is no longer substantially
similar and each such respirator may be penalized as a separate violation
when provided to an exposed employee for respiratory
(3) Violations of the general duty clause [Section 5(a) (1) of
the Act], if egregious, are to be cited in accordance with the FOM, Chapter
(a) The hazard must be identified with specificity.
Multiple citations may not be issued on the basis of missing controls or
different sources or causes of the hazard.
(b) Each employee exposed to the recognized hazard at the
time of the violation constitutes a separate violation.
e. All violations not recommended for consideration as
egregious shall be classified and issued separately in accordance with the
FOM, Chapter V. They shall not be grouped with violations recommended as
4. Case Support Requirements. Because these cases involve
administrative and legal issues critical to the effective enforcement of the
Act, it is essential to ensure that the highest professional standards are
met in the conduct of inspections, the issuance of citations, and the
prosecution of litigation in such cases.
a. Documentation. Whenever a case is proposed for
violation-by-violation treatment, as fully detailed responses to the
questions listed in Appendix A of this instruction as possible must be
developed in writing. Supporting documentation shall be provided and
cross-referenced whenever possible.
(1) These questions, originally developed for recordkeeping
cases, have been adapted as appropriate for safety and health
(2) Mandatory use of these questions is intended to provide a
consistent format to aid in review of these cases, as well as to ensure as
far as possible uniformity of case development across Regions.
b. Evidence. Documentary support shall ordinarily be planned
for and obtained early in the investigation.
(1) The evidence necessary to support citations being considered
for violation-by-violation penalty sanctions shall be included in the case
file. Such evidence must be present for each separate
(a) Photographs, videotapes, audiotapes, sampling data, and
witness statements shall be used whenever possible to provide supporting
evidence of violative conditions.
(b) Company documents supporting knowledge of the standard
and the violative conditions as well as willfulness of the violation shall be
diligently sought and obtained by subpoena as
(c) Examples of such documents are internal audit reports,
consultant or insurance company reports, trade association articles, minutes
from safety meetings, complaints from employees, memoranda and other
correspondence from safety personnel, especially from plant safety to plant
management or corporate safety recognizing violations and bringing them to
the attention of higher management, and notes relating to OSHA activities and
industry practice in other companies or industries.
(2) Employers must be asked explicitly:
(a) If and when they recognized the hazardous nature of
each of the violations;
(b) If they knew what OSHA's standards require, and, if so,
what steps the company had taken to abate and why the apparent violations had
not been corrected;
(c) If they knew of the documents identified under
subparagraph (1) above and what those documents
(3) Their responses shall be carefully documented in writing
(verbatim if possible). An attempt shall be made to have a second person
present as a witness, particularly when dealing with potentially compromising
(4) Signed employee statements shall be obtained routinely to
support each of these violations in as much detail as
(5) Employee exposure and the nature and extent of injuries or
illnesses related to the violations shall be carefully and adequately
(6) The need for subpoenas and medical access orders shall be
decided and documents obtained as soon as possible.
(7) The need for experts shall also be decided and necessary
arrangements made early. It is anticipated that experts will be needed for
cases involving complex violations, such as ergonomics, or abatement
(8) Particular attention shall be paid to anticipating and
preparing for possible employer defenses, in accordance with the FOM, Chapter
c. Early involvement of the Regional Solicitor is essential to
examine and evaluate the documentation and other evidence supporting the
violations and to determine whether expert witnesses or depositions will be
necessary, as well as to provide sufficient time for the Regional Solicitor
to write a legal opinion on the merits of the case.
(1) The Area Director (through the Regional Administrator) shall
seek legal guidance (informally) from the Regional Solicitor periodically
throughout the case development process.
(2) The Regional Administrator shall ensure that such
involvement is accomplished at least 4 full months prior to the 6-month
(3) The Regional Administrator shall also ensure that the entire
case file, including OSHA-1Bs, documentary evidence, statements, and
photographs, is made available to the Regional Solicitor 8 weeks prior to the
5. Citations. The Act authorizes penalties to be proposed for each
violation but limits the maximum penalty that can be proposed. In accordance
with the FOM, Chapter V, the following procedures shall be adhered to in
issuing citations with violation-by-violation penalties:
a. Each separate violation must have its own Standard Alleged
Violation Element (SAVE). (The SAVE must be repeated for each violation
b. Each separate violation must have its own Alleged Violation
Description which will describe the particular conditions associated with
that violation instance.
c. Each separate violation must have its own penalty calculated
in accordance with the procedures given in H.3. of this
6. Regional and National Office Review. The procedures and
timetables given below are to be followed in all cases involving
a. Documentary Package. It is the responsibility of the Area
Director to provide adequate documentation of cases involving
(1) Two copies of the documentation package for all
violation-by-violation citations shall be forwarded to the Regional
Administrator for review.
(2) The package submitted for review shall include, at a
(a) A briefing memorandum summarizing the information
obtained under H.4. of this instruction.
(b) Copies of all OSHA 1-Bs related to the violations to be
proposed for egregious penalty handling. (See NOTE at the end of
subparagraph (4) below.)
(c) Copies of all critical evidence establishing the
willfulness of the violations.
(d) Copies of all critical evidence establishing the
justification for violation-by-violation citation and
(e) Copies of samples of each type of violation in the
proposed violation-by-violation citations.
(3) If the Regional Administrator, after review of the case file
material, believes that the case is appropriate for violation-by-violation
citation procedures, a copy of the complete documentation package shall be
forwarded to the Regional Solicitor as soon as practicable after completion
of the review (but no later than 8 weeks before the citation issuance date)
for legal analysis and composition of a legal opinion.
(4) The Regional Administrator shall include a copy of the
written legal opinion with the documentation package and submit the complete
package to the Directorate of Compliance Programs (DCP) as soon as possible
after receipt of the legal opinion.
NOTE: It will not be necessary to include copies of all
OSHA-1Bs for recordkeeping cases within the documentation package forwarded
to DCP. (See H.6.b.(1) of this instruction.)
(5) If the legal opinion has not been received within 5 weeks of
the 6-month date, the documentation package shall nevertheless be submitted
to DCP and the legal opinion forwarded as soon as it is
(6) The Regional Administrator shall also be responsible for
composing a 1- or 2-page summary of the most cogent reasons supporting the
egregiousness of the violation and the appropriateness of the application of
the additional penalty factor. The summary shall include the
(a) Outline of the facts of the inspection, including
inspection type, company name and size, operation involved and employee
representative, if any.
(b) OSHA inspection history (nationwide and at this
(c) Brief summary of violations found, the number and
nature of proposed citations and the amount of the proposed
(d) Brief justification of willfulness and egregiousness.
(e) Novel issues involved in the case or issues with
national implication for program or litigation policy.
(7) The Regional Administrator shall ensure that copies of the
summary and the complete documentation package are provided to the Director
of Compliance Programs and the National Office of the
b. Recordkeeping Violations. If the case involves
recordkeeping violations which are being considered for additional penalties,
two further steps are necessary.
(1) The Area Director shall provide an additional (third) copy
of the documentary package (See H.6.a.) to the Regional Administrator which
will be forwarded to the National Office for review. This extra copy will be
used by BLS for its review and must include all OSHA-1Bs related to proposed
egregious recordkeeping violations.
(2) Copies of evidence supporting each recordkeeping violation
proposed as egregious, as developed from the company's occupational injury
and illness logs and supplementary records, workers' compensation records,
medical records, first aid logs and other sources, shall be included in the
package. (See Appendix B.)
(3) This evidence must support the existence of a violation for
both nonrecorded and misrecorded cases. It must include the particular
recordability criteria involved: whether the case involved days away from
work and/or days of restricted work activity beyond the day of injury or
onset of illness as well as evidence that the case was work
NOTE: Medical records contained in the case file
shall be handled in accordance with OSHA Instruction CPL 2-2.46,
c. Timetable. It is critical to the development of a uniform
national policy that all cases appropriate for violation-by-violation
citation be handled as such. Regional Administrators and Area Directors
shall adhere as closely as possible to the timetables described
(1) Failure to supply the required documentation by the times
designated in the following subsections may preclude issuance of
violation-by-violation citations in otherwise appropriate
(2) Regional Administrators and Area Directors shall take care
not to expand the inspection beyond what they can reasonably expect to
accomplish within these time frames.
(3) Within one month after the start of an inspection which
appears to be appropriate for consideration for violation-by-violation
(a) The Area Director shall notify the Regional
Administrator of a potential egregious case. The Regional Administrator in
turn shall notify the Director of Compliance Programs (Attention: Director,
Office of General Industry Compliance Assistance, FTS 523-8041) of the
1 Establishment name.
2 Area Office of jurisdiction.
3 Six month date.
4 Opening conference date.
5 General type of apparent violations (e.g., safety,
(b) The Regional Administrator shall notify the Regional
Solicitor of the impending case and seek advice as to necessary documentation
and involvement of outside experts.
(4) The Regional Administrator shall establish an appropriate
timetable for periodic submission of the case by the Area Director for
Regional Office and Regional Solicitor review.
(a) After 60 days onsite, the Area Director shall ensure
that the case is submitted to the Regional Office for
(b) The Regional Administrator shall submit the case to the
Regional Solicitor for an interim legal review, evaluation and
(c) As the case is being developed and as additional
information becomes available, the Regional Administrator shall ensure that
this information is submitted to the Regional Solicitor for additional
(5) No later than 8 weeks before the 6-month date, the entire
case file shall be submitted to the Regional Solicitor for final legal
analysis and for a written legal opinion as outlined in
(6) At the same time, a copy of the complete briefing package
and relevant portions of the case file as described in K.6.a. and b. shall be
submitted to the Director of Compliance Programs.
(7) No later than 15 days before the 6-month issuance date, at a
time to be scheduled by the Director of Compliance Programs, the Regional
Administrator shall send appropriate field compliance staff (including the
compliance officer(s) conducting the inspection) to the National Office to
discuss the proposed citations in detail.
d. National Office Review. Upon receipt of the documentary
package, the Director of General Industry Compliance Assistance shall
distribute copies to the reviewers.
(1) Copies shall be provided within 2 working days of receipt to
the appropriate DCP Compliance Assistance Office, the Office of Field
Programs and SOL. The Office of Information and Consumer Affairs shall also
(2) At the same time a financial profile of the firm shall be
requested from the Directorate of Policy, Office of Data
(3) Within 10 days of receipt of the documentary package, a
National Office technical and legal review shall have been conducted.
Following completion of that review, any identified problems or deficiencies
shall be conveyed in writing as soon as practicable, but no later than 2 days
after the review, to the Regional Administrator for response.
(4) After obtaining any needed additional information, a
screening session shall be scheduled with the Deputy Assistant Secretary for
presentation of the case. Such screening shall be scheduled no later than 2
weeks before the 6-month issuance date.
(a) Prior to presentation of the case to the Assistant
Secretary or the Deputy Assistant Secretary, the case shall be prescreened by
the Director of Compliance Programs and the Associate Solicitor of
(b) If the case is judged egregious as a result of the
prescreening, the case shall normally be presented to the Assistant Secretary
or the Deputy Assistant Secretary by the Director of Compliance
(c) The Regional Administrator shall be prepared to present
the facts and other evidentiary details of the case.
(d) The Regional Solicitor will be prepared to discuss the
potential litigation aspects of the case.
e. The Assistant Secretary or the Deputy will render a decision
on the merits of the case and will give appropriate instructions on how the
case is to be handled. Such instructions will address the final penalty
amount to be proposed, the date of citation issuance, the coordination of any
press releases, and the like.
f. Within 48 hours after issuance, the Area Director shall send
a copy of the citation to the Director of Compliance Programs; electronic
transmission is acceptable.
I. Delegation of Authority. It is agency policy eventually to delegate
authority for decisions regarding the use of the violation-by-violation
citation and penalty procedures to the Regional Administrator. The actual
delegation of this authority will be addressed in future changes to this
Gerard F. Scannell Assistant Secretary
DISTRIBUTION: National, Regional, and Area Offices All Compliance Officers
State Plan Designees NIOSH Regional Program Directors 7(c) (1) Project
Egregious Cases: Information
1. Scope of Inspection.
a. Date initiated.
b. Latest date for issuance of citations (6-month date).
c. Type of inspection (e.g., safety, health, programmed, complaint,
d. Nature of employer's business, corporate-wide and at this facility.
e. Number of employees (overall; in plant).
f. Names of unions representing employees.
2. Inspection History.
a. Numbers and dates of previous inspections.
b. Previous violation history at this establishment and in the
3. Inspection Methodology.
a. Procedures followed in conducting the investigation:
(1) Were warrants, medical access orders or administrative
subpoenas necessary? Why? Were they obtained and used?
(2) What written records or other documents were examined or
(3) What are the names of the compliance officers conducting the
(4) Were experts or other consultants used in the inspection?
If so what are their names and qualifications?
(5) Have depositions been taken? Are any planned? Who will be
b. For recordkeeping violations:
(1) Who has the responsibility for maintaining and certifying
the OSHA-200, Log and Summary of Occupational Injuries and Illnesses, and
(2) Were medical or injury and illness records reviewed by OSHA
a. Summary of violations:
(1) Number and classification.
(2) Types of violations:
(a) Standards or regulations violated.
(b) General Duty Clause (Section 5(a) (1) of the Act) violations
together with applicable industry standards, NIOSH recommendations, ANSI
standards, and other supporting guidelines.
NOTE: In recordkeeping cases violations shall be
categorized by year and according to either failure to record or misrecording
involvement of days away from work and/or days of restricted work activity,
loss of consciousness, job transfer, restriction of work or motion (i.e.,
restricted work activity on the day of injury/illness only), medical
treatment and other.
They shall also be prepared by injury or illness
b. Proposed citations:
(1) How is the violation-by-violation penalty to be applied?
(2) How many violations?
(3) Are there additional violations, not egregious?
c. For recordkeeping violations:
(1) How many cases were not recorded for the previous 2 years?
How many were recorded? Of those not recorded, how many were lost workday
(2) What is the LWDI rate according to company records?
According to OSHA findings?
(3) What is the LWDI rate among production employees (or among
classes of employees affected by the proposed citation) according to company
records? According to OSHA findings?
(4) Were any previous inspections terminated because of a low
5. Documentation Relating to Additional Penalty Factors.
a. Determination of willfulness:
(1) What were the firm's guidelines or policies relating to
safety and health in general and, in particular, to the subject violation
(e.g., recordkeeping, hazard communication, machine guarding, use of
respirators, maintenance of pressure vessels)? What was the local facility's
safety and health program?
(2) Do corporate or plant policies or guidelines differ from
OSHA requirements, or other relevant standards, regulations or guidelines?
What is management's explanation for differences between its policies and
(3) Did responsible persons actually know of the requirements of
the relevant OSHA standards, guidelines or instructions? Who were they and
how did such persons come to know OSHA's requirements?
(4) Did responsible persons actually know of the existing
hazardous conditions? Did they recognize the hazardous nature of these
conditions? If so, who were these persons and for how long had they
recognized the hazard?
(5) How did the employer explain the existence of the
violations? Did the employer claim that any steps to abate had already been
taken? Was any documentation available to support such previous
(6) Had the company done anything toward identifying, evaluating
or correcting the hazardous conditions prior to OSHA's visit? Was an
abatement program in place or had one been proposed? What progress had been
made toward implementing it? Does it seem adequate? What was the company's
explanation as to why more progress had not been made?
(7) Are any memoranda, letters, minutes, accident reports or
other documents addressing the hazards, violations or corrective measures
available? Describe them. Did management admit knowledge of these
documents? Had management responded in any to them? How?
b. Penalty factors:
(1) How many violations of each standard are involved and how
extensive (pervasive) is the problem?
(a) What is the nature of the violation? (How many machines? How
many different engineering controls? How many employees
(b) What does the Regional Administrator propose as the
"multiplier" for penalty calculation purposes? (See H.3.e.) Why that
(2) For recordkeeping cases:
(a) Did the unreported or misrecorded cases tend to hide
violative safety and health conditions in the establishment?
(b) Were unrecorded incidents investigated by the company?
(c) Were the unrecorded injuries or illnesses serious?
(d) Were the unrecorded injuries or illnesses the subject of
workers' compensation claims?
(3) What kind of safety and health program exists in the plant?
What is management's attitude toward safety and health? What do management
officials actually say?
(4) What training was given to employees and supervisors
regarding compliance with the standard or regulation, or abatement of the
recognized hazard? If none is given, what did management admit or what
explanation did they offer?
(5) Did the company enforce its own policies and guidelines?
(6) What were the most serious reasonably predictable injuries
or illnesses that could result from exposure to the hazard? Would these
potential injuries or illnesses be classified as serious? Did management
admit recognition of the potential for these injuries and
(7) What was the company's record (especially relating to
workers' compensation claims) for injuries and/or illnesses associated with
alleged violations? What kind and how many such injuries or
(8) Are the abatement methods used by the company sufficient?
Are the hazards well known in the industry? What is industry practice with
respect to the hazards? Are appropriate methods to correct the hazards well
recognized in the industry? What is industry practice with respect to the
hazards? Why had the employer not implemented them? Were any interim
protection measures in place? If not, why not?
NOTE: All of the above questions are to be directly
asked of management personnel and their responses carefully recorded. A
second CSHO or other reliable witness shall be present if at all possible.
Documentary evidence shall be sought throughout the investigation, using
administrative subpoenas promptly and freely, as appropriate.
Standardized Information and
Optional Recordkeeping Case Outline
Case files for recordkeeping citations to be considered for
violation-by-violation penalty procedures shall be set up to group
violations, using a numerical code as shown below, fol-lowed by the case
number of the violation as may be recorded in the optional recordkeeping case
A. Case types are as follow:
01--Laceration 02--Puncture wound 03--Fracture 04--Eye injury
05--Burn 06--Contusion 07--Strain/sprain 08--Hernia 09--Other (major
category) 10--ALL other injuries (non-specific)
11--Dermatitis 12--Cumulative trauma disorder 13--Hearing loss
14-Poisoning 15--Respiratory disorder 16--Cancer 17--Other (major category)
18--All other illnesses (non-specific)
B. For burns, there shall be some estimate of the size of the burn. This
can be given in the "Detailed Description of Event" column on the suggested
recordkeeping case outline.
C. Using the suggested recordkeeping case outline or some other appropriate
format, include the following types of information for each violation under
"Detailed Description of Event":
1. Work relationship.
EXAMPLE: "While working as a welder...."
EXAMPLE: Employee sprained his left wrist. Employee
fractured her right index finger.
3. Basis of recordability: injury or illness.
EXAMPLE: Employee was to take prescription medicine
(Naprosyn) for 5 days and received heat therapy on three subsequent
D. Each violation must have:
1. A unique case file number;
2. A way to be identified, either by name or employee clock number;
3. The reason the instance is a violation of the BLS guidelines; and
4. A detailed description of the event (injury or illness).
E. Five guides are included in this appendix and in Appendix C for use in
1. Chart 1. Guide to Recordability of Cases Under the Occupational
Safety and Health Act.
2. Chart 2. Guidelines for establishing Work Relationship.
NOTE: The charts are from the BLS September 1986
Recordkeeping Guidelines for Occupational Injuries and Illnesses.
3. Medical Treatment vs. First Aid Guidelines.
4. A partial list of prescription and nonprescription drugs based
on previous recordkeeping investigation history.
5. Physician's Abbreviations Guide.
For Pages B-4 and B-5 refer to printed copy of CPL 2.80
CHART ONE - Guide to Recordability of Cases Under the Occupational Safety
and Health Act
CHART TWO - Guidelines for Establishing Work Relationship
Medical treatment vs First Aid treatment
The following procedures are generally considered medical treatment.
Workrelated injuries for which these types of treatment were provided or
should have been provided are recordable:
- Treatment of INFECTION;
- Treatment of SECOND OR THIRD DEGREE BURN(S);
- Application of SUTURES (stitches);
- Application of BUTTERFLY ADHESIVE DRESSING(S) or STERI STRIP(s)
in lieu of sutures;
- Removal of FOREIGN BODIES EMBEDDED IN EYE;
- Removal of FOREIGN BODIES FROM WOUND if procedure is COMPLICATED
because of depth of embedment, size, or location;
- Use of PRESCRIPTION MEDICATIONS (except a single dose
administered on first visit for minor injury or discomfort);
- Use of hot or cold SOAKING THERAPY during second or subsequent
visit to medical personnel;
- Application of hot or cold COMPRESS(ES) during second or
subsequent visit to medical personnel;
- CUTTING AWAY DEAD SKIN (Surgical debridement);
- Application of HEAT THERAPY during second or subsequent visit to
- Use of WHIRLPOOL BATH THERAPY during second or subsequent visit
to medical personnel;
- POSITIVE X-RAY DIAGNOSIS (e.g., fractures, broken bones);
- ADMISSION TO A HOSPITAL or equivalent medical facility FOR
The following procedures are generally considered first aid treatment (e.g.,
one-time treatment and subsequent observation of minor injuries) and
work-related injuries involving such procedures are not recordable unless
they involve loss of consciousness, restriction of work or motion, or
transfer to another job.
- Treatment of FIRST DEGREE BURN(S);
- Application of BANDAGE(S) during any visit to medical personnel;
- Use of ELASTIC BANDAGE(S) during first visit to medical personnel;
- Removal of FOREIGN BODIES NOT EMBEDDED IN EYE if only irrigation
- Removal of FOREIGN BODIES FROM WOUND if procedure is
UNCOMPLICATED and is, for example, by tweezers or other simple
- Use of NONPRESCRIPTION MEDICATION AND administration of single
dose of PRESCRIPTION MEDICATION on first visit for minor injury or
- SOAKING THERAPY on initial visit to medical personnel or removal
of bandages by SOAKING;
- Application of hot or cold COMPRESS(ES) during first visit to
- Application of OINTMENTS to abrasions to prevent drying or
- Application of HEAT THERAPY during first visit to medical
- Use of WHIRLPOOL BATH THERAPY during first visit to medical
- NEGATIVE X-RAY DIAGNOSIS;
- OBSERVATION OF injury during visit to medical personnel.
The following procedure, by itself, is not considered medical treatment.
- Administration of TETANUS SHOT(S) or BOOSTER(S).
However, these shots are often given in conjunction with more
serious injuries; consequently, injuries requiring these shots may be
recordable for other reasons.
The following list is intended to supply a reference list of
drugs currently requiring a prescription. The list is not to be exhaustive
but merely to list some of the more commonly encountered prescription drugs.
This list is currently accurate but is subject to change and must be verified
if a listed drug is found during an inspection. (See Physicians Desk
Reference or contact a druggist or physician.)
Adsorbonac Motrin Anaprox
Nalfon Anapux Naprosyn Antivert tablets
Naproxen Aristocort cream Neomycin sulfate tablets Atropine
sulfate injection Neosporin drops Atropine sulfate ophthalmic
ointment 1% mic ointment
A-S cream Neo-decadron Benadryl
capsules-not lotion ophthalmic Butazolidin Norflex
Chloramphenicol ophthalmic Norgesic solution 5% Norgesic
forte Chloroptic ophthalmic solution Papase Clinoril
Parafon forte Cobisic Penicillin Cortisporin
Phenergan Cortisporin drops Phisohex Cortisporin otic
solution Ponstel Darvocet Robaxisal Darvon
Rufen Decadron phosphate sterile Silvadene cream
ophthalmic ointment Skelaxin Dolobid Snyestion
Duricef Solatene Elavil Soma
compound with Elixir of Turpin Hydrate Codeine Feldene
Strifon forte Gantrissin drops Synalar cream Garamycin
ointment Synalgos-DC capsules Halcion tablets
Tetracycline Hydrochlorothiazide Thiamine Hydrochloride
Hydrocortisone cream 1% Tobrex Indocin Tobrex
ophthalmic solution Keflex Tolectin Maxitrol
Tylenol #2 Meclomen Tylenol #3 Medrol
Valisone cream Xylocain w/EPT. 2%
The following list is intended to supply a reference list of drugs not
currently requiring a prescription. The list is not intended to be
exhaustive but merely to list some of the more commonly encountered
over-the-counter (OTC) drugs, many of were recently dispensed only by
prescription. This list is currently as accurate as possible but is subject
Acetaminophen Advil Bacitracin
Betadine Chlor-Trimeton tablets Hydrocortisone cream 0.5 %
Ibuprofen (OTC generic) Motrin 1B Neosporin ointment
Nuprin Percogesic Robitussin Sudafed syrup
Physician's Abbreviations Guide
Pt - Patient b.i.d. - twice daily q.1. - as much
as desired t.i.d. - thrice daily q.p. - as much as you please
q.i.d. - 4 times a day QOD - every other day q.r.n. - when
necessary q.h. - every hour q.s. - as much as suffices
q.d.s. - 4 times a day Qd - per day pp - post
prandial (after eating) m - milligrams c - with a
- same quantity p - after po - by mouth
pr - by rectum IPPB - Intermittent positive pressure
breathing Dx - Diagnosis Fx - Fracture Thx -
Therapy WT - Weight Hx - History
CBC - Complete blood IV - Intravenous count
Phx - Physical exam UA - Urinalysis EKG -
Electrocardiogram ECG - See EKG EEG - Electroencephalogram
SZ - Seizure Rx - Treatment, treated CXR - Chest X-ray
PA - Posterior-anterior (kind of CXR) LAT - Lateral (refers to
X-ray view) RUQ - Right upper quadrant (abdomen) LUQ - Left upper
quadrant (abdomen) RLQ - Right lower quadrant (abdomen) LLQ - Left
lower quadrant (abdomen)
VS - Vital signs (there are four vital signs)
BP = Blood Pressure T = Temperature P = Pulse
RR = Respiratory or Rate HR = Heart rate
LBP - Low Back Pain CTS - Carpal tunnel Syndrome
SMA 20-20 channel chemistry test
Na - Sodium K - Potassium
Cl - Chloride BAN - Blood area nitrogen
Cr - Creatinine Ca - Calcium
Ph - Phosphate Gln - Glucose
Alb - Albumin
Chol - Cholesterol
SGOT, SGPT, Alkphos GGTP are Liver Enzymes
Bili Direct Total-Bilirubin