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Safety Check: Smart Responses to a Surprise Visit by OSHA
Surprise, Surprise: What to expect and strategies to consider when an OSHA compliance officer stops by for a surprise inspection. Knowing what to and being prepared in advance make all the difference.
By Jary Winstead
Date Posted: 6/1/2015
You hear a knock at the door, and an OSHA compliance officer has stopped by for a surprise inspection. What do you do now?
Through the years I have received many phone calls with that very question, and quite often there is a panic in their voice. As for workplaces with a proactive workplace safety program, there is little to be worried about. Unfortunately, for most workplaces, there may very well be good reason to be worried.
Looking back, recalling how a mill owner responded after I warned him about his lack of compliance. He stated “If OSHA shows up, I have the right to tell them that I don’t have the time, and they will just have to make an appointment, and if they don’t like that, they can speak to my attorney!” I knew at that point, that I did not want to work with that business. It would have done no good for me to inform him that he was wrong, for he would not have listened. I shook his hand and thanked him for his business.
When an Occupational Safety and Health Administration (OSHA) compliance officer comes into your workplace, introduces him or herself, and provides their credentials, you cannot send them away. Well, I guess you could, but they will be back after taking the legal steps to obtain a warrant. I might also add; Assaulting a compliance officer or otherwise resisting, opposing, intimidating, or interfering with a compliance officer in the performance of his or her duties is a criminal offense and is subject to a fine of not more than $5,000 and imprisonment for not more than three years.
It goes without saying, the rougher you make it for them, the rougher they will make it for you. On the other side of the coin, the more accommodating you are, the more lenient they will be. Well. Maybe lenient isn’t quite the best wording; a willful violation, is a willful violation. We will get back to this.
After taking part in numerous inspections through the years, my experience with OSHA has always been positive. When an OSHA compliance officer pays you a visit, it’s too late to start your preparation for an inspection. Preparation for an OSHA inspection needs to start when you open your business and by complying with OSHA standards from the very start. Preparation is providing a safe working environment for all employees, and having a proactive safety program in-place. Employers that can, upon request, provide up to date required records and documentation, can be confident that their inspection is going to go well. That is, unless there are serious and or life threatening conditions present.
Records and Documentation Should Include:
• OSHA 300 Logs (Three years minimum)
• Written Safety Programs
• Safety Meeting Minutes (Three years minimum)
• Workplace Injury and Illness Investigations (Corresponding to recorded incidents on 300 logs)
• Safety Training Documentation
Compliance inspections require no warning, although depending on the circumstances, you may receive a notice prior to an inspection. Under the Occupational Safety and Health Act of 1970, OSHA is authorized to conduct workplace inspections and investigations to determine whether employers are complying with standards issued by the agency for safe and healthful workplaces. The General Duty Clause in the act requires that every working man and woman must be provided with a safe and healthful workplace.
Due to the overwhelming amount of workplaces in the United States covered by the act, 111 million and counting, OSHA cannot inspect them all at once. Therefore, the inspection scheduling is prioritized. The worst situations obviously get top priority.
This information can be found online at www.osha.gov/Publications/osha2098.html
OSHA prioritizes the inspections into the following categories:
Imminent Danger Situations
Imminent danger situations are hazards that could cause death or serious physical harm, which should receive top priority focus. Compliance officers will ask employers to correct these hazards immediately or remove endangered employees. They can and will stop your production processes, until the workplace and or process is considered safe.
Fatalities and Catastrophes
Fatalities and catastrophes are incidents that involve a death or the hospitalization of three or more employees. Employers must report such catastrophes to OSHA within eight hours.
Complaints are allegations of hazards or violations. Depending on the complaint, this may also be considered a high priority. Employees may request anonymity when they file complaints. It is important to add that it is illegal for any employer to retaliate against or reprimand an employee for reporting a hazardous condition.
Referrals of hazard information from other agencies, such as; federal, state or local jurisdictions. Even reports of hazardous conditions from individuals, organizations, or the media will be considered for inspection.
I recall a school that was replacing the roof of its physical education building. They were using students that volunteered to replace the roof. Unfortunately for them, the local newspaper took a photo of the project while the students were on the roof, over 12’ off of the ground, and without fall protection. This merited an OSHA compliance officer inspection. Thankfully, no students were injured.
Follow-ups include re-inspections on the status of previous violations to OSHA standards.
Planned or Programmed Investigations
Planned or programmed investigations include inspections aimed at specific high-hazard industries or individual workplaces that have experienced high rates of injuries and illnesses. Each OSHA Office receives a list of worksites that are selected through worker compensation insurance codes, insurance accident and injury reports, and reports completed through medical facilities that give a notice of a workplace injury or illness.
In the event of a “Low Priority” hazard, OSHA may decide to call your workplace and review the reported safety hazard over the phone. In the event the hazardous condition was reported by an employee, the employee may agree with this method of contact. Depending on the hazard and your response, the issue may be resolved via phone, fax or mail. You will be required to provide a written response in most cases. Documentation is key for this type of interaction with OSHA.
The actual OSHA on-site inspections are organized in the following manner:
• Presentation of Credentials
• Opening Conference
• Walk Around
• Closing Conference
OSHA Compliance officers are well trained in occupational safety and health, and by the time your workplace is contacted, they have done their homework. The compliance officer will already know what your accident history is, and what documentation you need to have in-place. They will be well aware of any inspection history, compliance history, and have a good understanding of your operation.
Presentation of Credentials
At first introduction, the compliance officer will provide you with credentials that include a photographic identification, compliance officer number, and a business card providing personal contact information.
The compliance officer will provide the employer with an explanation of the purpose of the inspection, and or why the workplace has been selected. They will explain how the inspection process will proceed. The employer will have the opportunity to select which company representative they want to accompany the compliance officer during the inspection. A safety program administrator or safety committee chairperson is often the best choice.
The Compliance officer and a company representative will complete a thorough inspection of the reported hazard, and or the entire workplace, depending on the category and purpose of the inspection. Work practices, policies, procedures, and written documentation, will be thoroughly inspected.
When employee health concerns are reported or found, instrument testing will take place of the working environment to determine worker exposures to hazardous chemicals, dusts, fumes and noises. Environments where air quality and oxygen content may be a health hazard, the inspector will test to determine if any immediate dangers to life or health (IDLH) conditions exist. The OSHA compliance officer will complete one-on-one interviews with employees of their choosing. The company representative will not be able to attend the interviews.
After the inspection process has been completed, the compliance officer will review his or her findings. The compliance officer will review possible courses of action an employer may take following an inspection, which could include an informal conference with OSHA or contesting citations and proposed penalties. The compliance officer also discusses consultation and employee rights.
Depending on the seriousness of the violations to OSHA Standards found, the compliance officer will provide time periods allowed to address the concern. Imminent danger situations or hazards that could cause death or serious physical harm will be required to be addressed immediately. These serious conditions will most often require the work process to be halted, until the hazard has been eliminated.
OSHA must provide a citation or proposed penalty within six months of the inspection. The employer will have the right to appeal the citation or penalties at that time. Those hazardous concerns found during the walk around that are immediately addressed during the inspection, may result in no penalties, and only a warning. Having in-place a proactive workplace safety program, and handling the concerns seriously, professionally, and being pleasant to the compliance officer will go a long way in reducing, if not totally removing costs related to penalties. OSHA will give a timeline in which the employer must provide a written response to each violation, indicating what the employer did to eliminate the hazard.
Violations are categorized as other-than-serious, serious, willful, repeated and failure to abate. Fines may range from no penalty at all, up to $7,000 for each serious violation and up to $70,000 for each willful or repeated violation.
“Willful” brings two recent penalties to mind. OSHA fined a bakery for $28,125 for willfully allowing an employee to remove guarding and place his hand in the point of operation of a dough machine. Another OSHA citation of $75,800 was given to a plant where fall hazards were continually ignored. In both cases, the company had been warned, and management knew of the hazards. In both cases, management, and or the owners, failed to do anything about it.
Another “Willful” condition existed in a molding mill. In this case the mill owners knew of a roof leak that was creating electrocution hazards. The safety committee had numerous documented safety meeting minutes that noted the roof leak, but when provided to management, the mill’s management failed to respond. The roof eventually collapsed when no one was around. The legal situation is pending, the mill is now out of business, and this may result in lawsuits by former employees.
Information regarding OSHA Standards can be obtained at www.OSHA.gov and information regarding inspections, penalties, and appeals can be obtained through that webpage, simply by typing 29 CFR 1903 in the search tab.
As stated in numerous articles, documentation is crucial to your safety program. Without documentation, there
is absolutely no proof that you have complied with OSHA standards. One of the worst answers you could ever give an OSHA compliance officer; “I don’t have the documentation you have requested.”
Editor’s Note: Jary Winstead is a safety consultant, author and trainer who serves a variety of industries including the forest products sector. He owns Work Safety Services LLC and can be reached at SAFEJARY@aol.com.
Best Practices and Pitfalls to Remember When OSHA Comes Calling
• Be courteous, professional, honest, and most importantly; be prepared for an OSHA visit.
• Determine the reason for the inspection to know what exactly must be shown to the OSHA officer. This should be done at the opening conference.
• If your company has unique trade secrets, such as a proprietary machine or process, ask OSHA to take this into consideration as OSHA conducts its investigation and publicizes any results. The best time to discuss this concern is the opening conference.
• Appoint somebody ahead of time to handle OSHA visits. This may be a safety officer and/or the chairperson of your safety committee. Make sure this person is prepared and knows what to do when OSHA shows up. Also, make sure that receptionists and security guards know what to do when an OSHA officer visits.
• Don’t volunteer too much information because anything you say can be used against you or your company. There is no such thing as an off-the-record conversation when it comes to OSHA. Answer questions simply, don’t elaborate further than needed, and don’t make up an answer. It is better to say you don’t know than to make up something that is wrong.
• Do not lie or discourage employees from talking with OSHA because this can be considered obstruction of justice or possibly a conspiracy.
• If the inspection relates to a specific complaint or department, only take the OSHA officer through that part of your facility. The more you show OSHA, the greater the chance that additional violations will be found.
• If the appropriate person is not there at the time of the visit, you can ask the OSHA officer to wait to start the inspection until the safety representative can be there. In some cases, OSHA will wait an hour or two to accommodate this request. At the same time, don’t make OSHA wait unnecessarily or this could backfire.
• If you want to know what an inspector looks for, check out OSHA’s Field Operations Manual for Inspectors. This helps you know what to expect and more importantly the areas that an inspector will focus on. You can download a PDF of the manual at https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-150.pdf
• Be aware that OSHA compliance officers can inspect any workplace at any time, and no matter how your day is going, you must make the time for their inspection. Only refuse entry under the most severe of situations because OSHA can and most likely will return with a warrant that mandates you allow entry and access. Usually, if you make an OSHA officer go to this effort it turns out much worse for the company in the end in terms of citations and fines.
• Documentation is your best friend when it comes to showing what you have done in terms of safety training, prevention, etc. But old records can also be used against you to determine willful or repeat violations; unaddressed safety committee recommendations, outstanding hazards found during previous OSHA inspections, or other safety audit.
• Make sure to find out what OSHA standard was cited in any violation, and take action to remedy it as quickly as you can.