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OSHA Enforcement Director Discusses the Realities of Inspections
OSHA Inspections: How can you survive an OSHA inspection? Knowing what they will look for and being in compliance with federal safety regulations is the key.
By Chaille Brindley
Date Posted: 6/1/2006
Getting a visit from your friendly OSHA inspector ranks somewhere up near going to the dentist or being put on a fat free diet for many owners or managers in the pallet and sawmill industries. And while the relationship between OSHA and industry has not always been the best in the past, things are starting to look up. OSHA sponsors a number of free consulting options and other resources that can help a company be ready just in case OSHA inspectors knock on the door.
It pays to be informed and know common workplace standards. Plus, it’s the right thing to do and a smart way to preserve the health of your workforce.
So, we wanted to know what to expect if OSHA visits. And there was no better place to go than right to the top. Pallet Enterprise’s assistant publisher, Chaille Brindley, recently interviewed Richard Fairfax, the director of enforcement programs for OSHA. Richard is a former inspector as well as the current director. He gave straight answers on some of the most frequently asked questions about OSHA inspection guidelines.
Pallet Enterprise: How does OSHA work to develop an understanding of unique machinery or production processes that emerge in industries? How does OSHA make the proper assumptions about what is and what is not safe about new technology?
Fairfax: I have done sawmill and pallet mill inspections years and years ago. And a lot of what we do is the recognition of hazards. If an inspector sees a new piece of machinery, he will photograph and diagram it. The inspector will see how the machine works and talk with the operator to see if there are any concerns or dangerous points of contact. They will also do the same with the employer. Often times, they will ask the employer if they have any literature on it.
Chances are if a particular inspector has never seen a machine before, we have someone who has. We have a very good internal network. The compliance officer will observe the machine and get as much information as he can. Usually, they go back to the office and jump on the Web to see what the manufacturer has on the machine and will also start making contacts with other OSHA people.
Pallet Enterprise:What are some of the most common problems that an OSHA inspector looks for when visiting a manufacturing facility, specifically a pallet or sawmill facility?
Fairfax: The most common violations cited are lockout/tagout and machine guarding. That is what they look at first. Is the power transmission process accurately guarded? In a sawmill, things break down all the time. Is the machinery properly locked out so that maintenance people are protected? Proper guarding and protection from the blades is one of the key points of concern.”
Pallet Enterprise: What does OSHA do to try to standardize enforcement and procedures as far as what it requires from place to place across the country?
Fairfax: One of the things we strive to do is make sure that we are consistent. Sometimes we are more successful than other times. What generally happens is if there is a piece of machinery that looks worse than it is and there are certain things that need to be done on it and other things that don’t need to be done on it, we pass that information onto our training institute, which trains our inspectors. For example, we have a sawmill course.
OSHA has an internal network that a compliance officer can check. Then an inspector can contact other offices that have dealt with it.
One thing that can be done by the industry is if they have worked out abatements by a certain area office, we encourage the industry to pass out that information across the country. Then if an OSHA inspector sees something new, the company can show the information and say, “This is what OSHA did in other offices.”
Pallet Enterprise: But as far as the interpretation of certain standards, some things are left to the regional offices and inspectors…right?
Fairfax: No, for the sake of consistency, interpretations are only done by my office.
Pallet Enterprise: If there are concerns about a particular piece of machinery not being treated the same way across the country, then people in the industry should contact you and ask for harmonization of what should be done.
Fairfax: Yes, that actually happens quite a bit. An industry comes in with a new piece of equipment. Through their trade association or whatever, they will say this is a new piece of equipment and this is how it operates. Then we will try to put together what is acceptable and what we expect to be done.
If there is a new piece of machinery we haven’t seen before, a compliance officer will look at it and make judgments about what is reasonable and what he thinks will work. It doesn’t become an issue for my office unless someone writes in and asks a question or we learn that a piece of machinery is showing up in a lot of different inspections. Then we will make sure that inspectors look at it the same way.
Pallet Enterprise: Is there ever such a thing as an OSHA approved machine? Or is that just a line used by some manufacturers to market products?
Fairfax: OSHA doesn’t approve anything. If you see something that says OSHA approved, we don’t approve anything. We will tell people what abatement or guarding we think is acceptable. But we will not approve products. We don’t have that authority.
Pallet Enterprise: In that case, what should a company do to make sure that when it buys a piece of equipment it is OSHA compliant?
Fairfax: I have heard of companies learning that the equipment is operating somewhere else and going to look at it. You can get assurances that it is guarded properly. You could hire your own consultant to look at it.
Most guarding that comes with equipment is pretty good. What happens is that I have seen employers buy a piece of equipment and not purchase the guards because they cost extra. Then OSHA comes in and asks about the guards and the immediate reaction from the employer is that the machine did not come with guards, and I shouldn’t be held responsible because the machine does not come with it.
Pallet Enterprise: What triggers an OSHA investigation?
Fairfax: Most of the inspections in the sawmill and pallet industries are what we call program inspections. We select the industry and the establishments, and we do the inspection. It is based on the fact that those two industries have high injury and illness rates. Most of them are planned by OSHA. About one third of the inspections are generated by accidents or employee complaints. Granted, we don’t do a whole lot of inspections in these industries.
Pallet Enterprise: Could a pallet or sawmill expect an inspection every five years or so?
Fairfax: I don’t know how many sawmills fall under OSHA jurisdiction. But last year, we only did 184 inspections of sawmills. For 2005, we inspected only 88 pallet companies. When you consider that we do about 38,300 inspections each year by federal OSHA inspectors, that’s not a whole lot of inspections in those industries.
Pallet Enterprise: How many inspectors do you have and are they all required to go through the same training process?
Fairfax: We have a little over 1,000 inspectors. Yes, they all have to go through the same training process.
Pallet Enterprise: How does OSHA decide that something is a willful violation because that is where the big fines come into play?
Fairfax: We use the term blatant disregard. There is a number of ways to look at it. The employer knew that the machinery had to be guarded. We can prove that they knew. And they took no action to guard it. When we ask why is that machine not guarded, they say something like, ‘It will slow production down.’ That is willful conduct. Or an employee lost a finger or cut himself real badly on the machine, and the employer still took no effort to guard the piece of machinery. That is willful.
Pallet Enterprise: What is OSHA doing to not just inspect the big guys but to also find the small guys that may fly under the radar but have some of the most unsafe workplace conditions in the country?
Fairfax: Our main targeting system is based on establishments that have 40 or more workers so some of these establishments you are talking about probably would not fall into that system. We try to address those through local emphasis programs. Some of them we find out about based on leads or accidents. It is mostly through complaints, accidents or local targeting programs where we focus on small businesses.
Pallet Enterprise: How big does a pallet or sawmill need to be to fall under OSHA’s standards?
Fairfax: They just need one employee to fall under our standard for those industries. I was talking about our main targeting system that is geared toward facilities of 40 workers or more. A company with only one or two people has to provide the same training, information and safety equipment as one with 30 or 40 employees.
Pallet Enterprise: What resources are out there to help small or startup companies learn what they need to do to have a safe workplace and comply with OSHA regulations?
Fairfax: I am glad that you asked that question. We fund a free consultation service in every state specifically geared toward small employers. These are trained safety and health people. They will come out and basically do an OSHA inspection for them. There is no citation or penalty. All the employer has to do is agree to fix serious violations and hazards. It is free and confidential. These services don’t report back to OSHA unless the employer refuses to correct a serious hazard. It is a really good service.
Pallet Enterprise:: Please walk us through what a typical inspection looks like. What part of the inspection generally results in the most citations?
Fairfax: Most of our information comes from the walk around. When we first begin the inspection, we go over with the employer its rights and what we are going to do. That can take anywhere from 20 minutes to an hour. We generally review the injury and illness records and see where the company is having problems. Then we do a walk through. We start where the material comes into the facility and follow the process all the way through until where the product leaves the facility.
Along the way, our hazards are documented by observation. To get more information, we do interviews during the course of the walk through inspection. We will talk with employees, the foreman, manager. At the conclusion of the inspection, the compliance officer will sit down with the owner or manager and go through the things that the compliance officer thinks are violations of OSHA standards. At that time, the owner can provide additional information, can agree or disagree. Then the compliance officer prepares the case file, which is viewed by a supervisor and finally the director of the office.
Pallet Enterprise: If OSHA comes into a facility and an employee does not want to talk with OSHA, what rights does an employee have? What rights does an employer have in an inspection?
Fairfax: Well, employees do not have to talk to us or cooperate with us. That happens sometimes. Employers have the right to refuse us entry. Of course, if they refuse us entry, we will come in with a warrant. An employer can have an attorney presence during the visit.
Pallet Enterprise: What if key management people can’t be available the day of the inspection? Can a company ask for an extension?
Fairfax: We train our compliance officers that it is a judgment call. If the employer wants to delay an hour or so to get the right people there, that’s usually OK. If an employer wants to delay until the next day, that may be a problem. It may be OK.
If it is a complaint-based visit, we will probably tell the employer to either allow us immediate access or deny entry. If it is a programmed inspection and we don’t think things can change very much, often we will delay the inspection a day or so if approved by the area office. More times than not, though, we don’t do that.
Pallet Enterprise: If an inspector finds things that are violations or could cause workplace hazards, what rights does the inspector have to shut down a facility or part of an operation?
Fairfax: OSHA cannot shut a place down. We cannot do that; we have never done that. If a compliance officer feels that operation is in imminent danger, he can go to the employer and ask them to voluntarily shut it down and fix it, and we will explain why. Better than 95% of the time, the employer takes care of that because most of them don’t want to hurt anybody. If the employer refuses to shut it down and will not take any corrective action, our procedures require the officer to call the regional office and speak with the director. Normally, the area director will try to get the employer to shut down the process with the hazard. If that is not successful, the compliance officer is told to post an imminent danger notice. We recommend that the employees don’t work on it because it is an unsafe operation and we will try to protect them under the discrimination provision of the OSHA act. Then we get a temporary restraining order to stop the process. Again it is not shutting down the whole plant, just stopping that process until it is fixed. We issue very few imminent danger notices.
Pallet Enterprise: How is OSHA trying to change its reputation and have a much more collaborative than combative approach with industry?
Fairfax: In the last ten years, OSHA has made a real effort to change its image. As far as enforcement, we have tried to direct our targeting to those establishments with high energy and illness or fatality rates. Those companies that are trying to do the rights things and just need a little bit of help, we have been trying to push toward our compliance assistance programs. We have done a lot of outreach that is not tied in with enforcement.
Pallet Enterprise: What are your general thoughts about where the pallet and sawmill industries are in terms of compliance and workplace safety? Are the industries heading in the right direction?
Fairfax: I think they have come a long way to tell you the truth. I inspected those industries when I was a compliance officer back in the 70s. Back then, nothing was guarded. There was no protection for noise. Those were very dangerous industries. Fatality rates were pretty high. Because of the nature of the work in both industries, the injury and illness rates are higher than the natural average for all industries, but they have come a long way in the last 30 years.
Pallet Enterprise: What are the requirements for blood borne pathogens training and equipment for general manufacturing?
Fairfax: It depends if a facility has designated first aid providers, those employees who have been trained and it is part of their job to provide medical treatment if somebody gets hurt, then they are covered by the blood borne pathogen standard. If they rely on outside medical workers or EMTs, then they are not covered by the standard.
Tips for Surviving an OSHA Inspection
OSHA usually visits a facility for one of three reasons – to investigate a fatality or catastrophic injury, to follow up on a complaint or as part of a scheduled visit based upon the dangerous nature of a particular industry. The pallet and sawmill industries are classified as two of the more dangerous industries in the country. If you plan ahead, and keep these ideas in mind, the next time OSHA visits can be a minor inconvenience instead of a major problem.
• Ask the inspector to present his/her credentials and inquire about the nature of the visit. Refrain from taking an inspector through any area of your facility until you have determined the reason for the inspection. Ask for a copy of the complaint if applicable.
• Be prepared in regards to recordkeeping. One of the first things an inspector will want to see is your employee injury and illness logs. OSHA revamped its recordkeeping requirements a few years ago. Make sure that you are using the Form 300 (Log of Work-Related Injuries and Illnesses).
• Have a digital or video camera handy to use on the walkaround. Take pictures of the items pointed out by the inspector. If the inspector photographs something, take a similar picture for your records.
• Be polite and answer the questions asked by the inspector while avoiding giving too much information or providing details that do not relate to the scope of the investigation and the questions asked by the inspector.
• Employers do have the right to refuse entry to an inspector unless he/she has a search warrant. Once an inspector is in the facility, he/she should be required to follow the same procedures as any other visitor or employee.
• Be aware that forcing an inspector to secure a search warrant will likely result in a more thorough inspection. You can limit the inspection to the boundaries of the warrant. Or you can terminate an inspection at any time if the inspector does not have a warrant.
• You may be able to stop an OSHA inspection before it starts by getting employees to call you first with serious safety concerns instead of notifying OSHA. Employers will have to build staff confidence in your willingness to act and respond to legitimate safety problems.
• Have required safety manuals, injury records, training procedures, MSDS, etc. in a well-organized place where company officials can easily find them.
• Employees do not have to answer inspector questions. However, they must be free to answer questions and talk with inspectors without reprisal from the company.
• OSHA violations are publicly available and can create a poor company image. OSHA can also levy heavy fines costing thousands of dollars.
• Do not agree with the inspector about a violation during the visit. Review any suggested violations with upper management first.
• Fines are assessed by the area office and not the individual inspector. You will have 15 days to contest any citations and proposed fines.
• Be prepared by participating in OSHA’s free consultation service. This service is confidential and OSHA will not be notified about any infractions unless you refuse to correct serious hazards. If you use this service, you could qualify for a one-year exemption from routine OSHA inspections. Call your area OSHA office for more information. Visit www.osha.gov to find out more.