Keeping Your Paws Clean: How To Survive An OSHA Inspection
The OSH Act authorizes the Occupational Safety and Health Administration (OSHA) to conduct workplace inspections to enforce its standards. Every establishment covered by the OSH Act is subject to inspection by OSHA Compliance and Safety Health Officers. The uncertainty of inspections has always raised a level of fear in employers as to when and how inspections occur. Many employers avoid any contact with OSHA in the fear an inspection may result. However, OSHA has an established system of inspection priorities and conditions before an inspection is generated. Simply calling your local OSHA office is not going to generate an inspection.
Would you know what to expect if an OSHA inspector did drop in on your workplace? More importantly, would you be prepared? Here's information to help you know what to expect and plan for an OSHA inspection.
Cause For Inspection:
(Listed in order of priority)
1. Imminent Danger — Any condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately or before the danger can be eliminated through normal enforcement procedures. These are usually limited to plain-view hazards Compliance Officers can see from outside the property or building. This typically falls into construction sites.
2. Catastrophes and Fatal Accidents — Any accident resulting in the death of any employee or the hospitalization of three or more employees. Employers must report any death or hospitalization within eight hours to OSHA to comply with the FAT/CAT regulation.
3. Employee Complaints — This involves receiving workplace complaints from current or non-current employees. This may involve imminent danger or an employer violation that threatens death or serious physical harm. OSHA has an established protocol they follow when a compliant is received that results in a formal or non-formal investigation. This is the number one source that generates inspections for OSHA.
4. Referrals — Referrals may come from other individuals, agencies, organizations or the media.
5. Planned, or programmed, inspections — In industries with a high number of hazards and associated injuries.
6. Follow-ups — to previous inspections.
Complaint Protocol - What Happens Next
Complaints can be received from current or non-current employees via phone, fax, letter or OSHA Web site (worker page). The identity of the complainant is kept confidential throughout the process. Once the compliant is received, OSHA will determine if the complainant is a current employee or non-current and if there is merit to the complaint to move forward with an investigation.
Two Types of Investigation Will Now Result:
Formal — Must be a signed complaint from a current employee who requests an on-site inspection. All these conditions must be met before an on-site investigation can occur.
If it is determined that a formal investigation will take place, an inspection will be scheduled five days from receipt of signed complaint from a current employee requesting an on-site investigation. No prior notice is given to the employer. The inspection will be limited to specific complaint items and “plain view" hazards. It will include a look at the OSHA 300 logs and required programs.
Non-Formal — Complaint from a current or former employee or other (bargaining unit, spouse, attorney, etc.). A current employee must request an on-site investigation to generate a formal investigation, otherwise, it falls into the non-formal investigation.
In the case of a non-formal investigation, OSHA will handle the investigation administratively. OSHA will phone the employer and make them aware of alleged hazards, fax or mail letter explaining procedures to investigate. The employer has five working days to respond back to OSHA. Complainant gets copies of all correspondence. If the employer does not respond it will be upgraded to a formal investigation.
The Inspection Process
Prior to inspection, the compliance officer becomes familiar with as many relevant facts as possible about your workplace, taking into account such things as:
- the history of your business
- the nature of the business
- the particular OSHA standards likely to apply.
- selecting appropriate equipment for detecting toxic substances, noise, etc.
Typically, when the OSHA compliance officer arrives, he or she will display official credentials and ask to meet an appropriate employer representative. An employer has the right to require the compliance officer to obtain an inspection warrant before entering the worksite. OSHA may inspect after acquiring a judicially authorized search warrant based on administrative probable cause or evidence or a violation.
T he compliance officer will begin with a conference to explain why your facility was selected, the purpose of the visit, the scope of the inspection and the standards that apply. The employer is asked to select an employer representative(s) to accompany the compliance officer during the inspection. After the opening conference, the compliance officer and employer representative(s) inspect the work area(s). The compliance officer determines the route and duration of the inspection.
During the inspection, the compliance officer will point out any unsafe or unhealthful working conditions and will discuss possible corrective actions.
The compliance officer will tour the facility and do any or all of the following:
1. Observe safety and health conditions and practices,
2. Consults with employees - The inspector will question them in private about safety and health conditions and practices in their workplaces.
3. May take photos (for record purposes)
4. Take instrument readings
5 . Examines record - OSHA places special importance on posting and record keeping.
Be prepared to show the inspector records of deaths, injuries, and illnesses that you're required to keep. The inspector will also examine whether you're complying with applicable workplace posting requirements.
After the inspection, the compliance officer will have a closing conference with the employer or the employer representative to discuss all observed unsafe or unhealthful conditions and any apparent violations for which a citation may be issued or recommended.
Post Inspection Process - Violations & Penalties
After any inspection, the OSHA Compliance Safety and Health Officer reports all findings to the area director for evaluation. If a violation exists, OSHA issues the employer a Citation and Notification of Penalty with details on the exact nature of the violation and any associated penalties. The citation informs the employer of the alleged violation, sets a proposed time period to correct the violation and proposes the appropriate dollar penalties.
Violation Categories and Penalties
Willful: A willful violation is one in which the employer knew that a hazardous condition existed, but made no reasonable effort to eliminate it and in which the hazardous condition violated a standard, regulation or the Occupational Safety and Health Act. Has a minimum $5000 fine with a maximum of $70,000 fine.
Willful with fatality first conviction is punishable by a court-imposed fine or by imprisonment for up to six months, or both. Criminal penalty can reach a maximum of $250,000 for an individual and $500,000 for a corporation.
Willful with fatality second conviction is punishable by a court-imposed fine or by imprisonment for up to one year, or both. Criminal penalty can reach a maximum of $250,000 for an individual and $500,000 for a corporation.
Serious: A serious violation exists when the workplace hazard could cause injury or illness that would most likely result in death or serious physical harm, unless the employer did not know or could not have known of the violation.
Other-Than-Serious: An other-than-serious violation is defined as a situation in which the most serious injury or illness that would be likely to result from a hazardous condition cannot reasonably be predicted to cause death or serious physical harm to exposed employees, but does have a direct and immediate relationship to their safety and health. This carries no minimum penalty amount and maximum of $7,000.
Failure to Abate: A failure to abate violation exists when the employer has not corrected a violation for which OSHA has issued a citation and the abatement date has passed or is covered under a settlement agreement. A failure to abate also exists when the employer has not complied with interim measures involved in a long-term abatement within the time given. This carries a mandatory $7,000 per day fine.
Repeated: An employer may be cited for a repeated violation if that employer has been cited previously for a substantially similar condition and the citation has become a final order of the Occupational Safety and Health Review Commission. This carries a minimum penalty amount of $5,000 and maximum of $70,000.
When an employer receives a citation and notification of penalty, the citation (or a copy of it) must be posted at or near the place where each violation occurred to make employees aware of the hazards to which they may be exposed. The citation must remain posted for three working days or until the violation is corrected, whichever is longer. The employer must comply with these posting requirements even if the citation is contested. This violation carries a maximum of $7,000 fine.
What You Can Do - Employer Options
An employer that has been cited can take either of the following courses of action:
1. If the employer agrees to the Citation and Notification of Penalty, the condition must be corrected by the date set in the citation and the penalty paid, if one is proposed.
2. If the employer does not agree, the employer has 15 working days from the date the citation is received to contest in writing any or all of the following: citation, proposed penalty and/or abatement date.
How Employers Comply
For violations that are not contested, the employer needs to promptly notify the OSHA area director via letter stating that appropriate corrective action has been taken within the time frame outlined in the citation. A member of management must sign this letter. The employer must also pay any itemized penalties. This notification is referred to as the Abatement Certification. For Other-Than-Serious violations, this may be a signed letter identifying the inspection number, the citation item number and noting that the violation was corrected by the date specified.
For more serious violations—such as Serious, Willful, Repeat or Failure-to-Abate—the Abatement Certification requires more detailed proof such as:
• A photograph or videotape of the abated condition.
• A copy of an invoice or sales receipt for equipment used to achieve abatement.
• A report by a safety and health professional describing actions taken to abate the hazard or describing the results of analytical testing that substantiates abatement.
• Documentation from the manufacturer that the article repaired is within the manufacturer's specifications.
• A copy of a signed contract for goods and services (e.g., for needed protective equipment, an evaluation by a safety engineer, etc.).
• Records of training completed by employees (if the citation is related to training).
• A copy of program documents if the citation relates to a missing or inadequate program, such as a deficiency in the employer's respirator program or hazard communication program.
What You Can Do To Be Ready
If you're still concerned about the possibility of OSHA inspection, the following tips should help you be better prepared to survive or even avoid an OSHA inspection:
1. Make sure your facility has and follows a written Hazard Communication (HAZCOM) Program. HAZCOM is employee right-to-know and covers hazard evaluation, material safety data sheets, proper labeling, and employee training.
Note: Failure to have a written program was the number one OSHA violation last year!
2. Stay in compliance with OSHA recordkeeping requirements.
3. Be diligent to recording retention times and meeting workplace posting requirements.
4. Provide Safety Training to employees in all required safety categories, such as emergency response, lockout/tagout and personal protective equipment. Have regular scheduled discussions with your employees about safety and health conditions to keep you aware of any safety issues that might arise.
5. Participate in OSHA's compliance assistance programs. Contact OSHA regarding their free consultation services, voluntary protection programs, strategic partnerships, e-Tools, and electronic publications.
Sources for More Information
OSHA Publication 3000-09R, Employer Rights and Responsibilities following an OSHA Inspection, 2003
OSHA Publication 2056-07R, All About OSHA, 2003
Questions & Answers
Q. What is OSHA's Web site address?
A. www.osha.gov Q. How can I contact my local OSHA area office?
A. Dawg® offers a free Safety & Compliance Directory that contains all the phone numbers to OSHA Area Offices around the country. Call customer support today at 1-800-YEL-DAWG(935-3294) and request a copy or access it online.
Q. Are there any published guidelines for OSHA inspections?
A. Yes, OSHA Publication 2098, OSHA Inspections, 2002 will give genreal information on OSHA inspections.
|Please Note: The information contained in this publication is intended for general information purposes only. This publication is not a substitute for review of the applicable government regulations and standards, and should not be construed as legal advice or opinion. Readers with specific questions should refer to the cited regulation or consult with an attorney. |