Being present during many workplace safety and health inspections has taught me one thing – work with OSHA, and not against them. It has also taught my clients another important lesson – follow the OSHA standards.
Compliance officers for the Occupational Safety and Health Administration (OSHA) can show up at any time that they want. The compliance officer, either a health inspector or a safety inspector, or possibly both, may show up at your workplace any time during the work week.
Types of OSHA Inspections
Generally, OSHA inspections fall into two types of inspections: programmed and un-programmed. Programmed inspections are regularly targeted and scheduled due to a high risk type of industry, or an employer with above average injury rates for their industry. Many times these employers will receive a letter notifying them of the high potential or likelihood of an OSHA compliance inspection.
In the event you receive a letter informing you of the high potential or likelihood of an OSHA compliance inspection, it is a good time for you to review your safety program. You will usually have ample time to review your program, and make any necessary changes or improvements.
It would also be a good idea to take advantage of OSHA’s consultation services. OSHA offers consultative services for employers. The services are free, and you will not receive a citation when a hazard is found. Understand that a consultation can come to an abrupt stop in the event they find a serious or life threatening situation. These hazards must be addressed immediately. OSHA consultation services will often give you a grace period from compliance officer inspections, and they will not speak to the compliance division regarding their findings. This is kind of a get out of jail free card, as long as you schedule the consultation prior to a compliance inspection, or after the fact.
The second type is an un-programmed inspections resulting from a complaint by an employee, a serious injury, imminent danger situations, a worker fatality, or a referral by another federal or state agency.
Any imminent dangerous situation receives top priority, and compliance officers will ask employers to correct these hazards immediately or remove endangered employees. Worker complaints or allegations of hazards or violations also receive a high priority. These inspections may occur in person, and even over the phone. Employees may request anonymity when they file complaints.
In the event of a serious injury or illness, OSHA may inspect your workplace immediately. This is completed to address potential life threatening hazards that may be present at the workplace.
Remember that employers must report: all work-related fatalities within eight hours, and all work-related inpatient hospitalizations, losses of an eye, amputations, or avulsion that results in bone loss within 24 hours. In the event of a death or catastrophe, the accident scene must be secured and not disrupted, unless instructed so by emergency personnel. This will allow for a complete and thorough inspection by OSHA.
It’s also important to note that the reporting of a hospitalization, amputation, or avulsion will not automatically result in an OSHA compliance inspection. Through the years I have dealt with many of these accidents, and a thorough report with an injury and illness investigation to follow will address most of OSHA’s concerns. Always lean towards caution, and follow up with OSHA.
The OSHA Inspection, and What to Expect
When a compliance officer visits a workplace, they will follow their required protocol. This process will go as follows:
• Pre-inspection preparation: Before conducting an inspection, OSHA compliance officers will prepare for the inspection by researching the inspection history of a worksite using various data sources, review the operations and processes in use and the standards most likely to apply. They gather appropriate personal protective equipment and testing instruments to measure potential hazards.
• Introduction and their presentation of credentials: The on-site inspection begins with the presentation of the compliance officer’s credentials, which include both a photograph and a serial number. OSHA compliance officers must provide this information at their initial entrance.
• Opening conference of the inspection: The compliance officer will explain why OSHA selected the workplace for inspection and describe the scope of the inspection, walk around procedures, employee representation and employee interviews. The employer then selects a representative to accompany the compliance officer during the inspection.
An authorized representative of the employees, if any, also has the right to go along. In any case, the compliance officer will consult privately with a reasonable number of employees during the inspection. The workplace supervisors, and or managers, cannot be present during employee interviews.
• Inspection: The OSHA compliance officer and the representatives will walk through the portions of the workplace covered by the inspection, inspecting for hazards that could lead to employee injury or illness. The compliance officer will also review worksite injury and illness records, required postings, and information specific to the inspection (See recordkeeping/documentation list). During the inspection, compliance officers may point out some apparent violations that can be corrected immediately. When a hazard is found, and the employer addresses the hazard immediately, quite often, no citation will be issued for that specific hazard. While the law requires that these hazards must still be cited, prompt correction is a sign of good faith on the part of the employer.
Compliance officers will attempt to minimize work interruptions during the inspection and will keep confidential any trade secrets they observe.
• Closing Conference: After the inspection, the compliance officer holds a closing conference with the employer and the employee representatives to discuss the findings. This closing conference may not take place directly after the inspection. The compliance officer may make an appointment and return after he or she has gathered and reviewed all the information. During the closing conference, the compliance officer discusses the results of the inspection, or hazards identified during the inspection. The OSHA compliance officer will discuss possible courses of action an employer may take following an inspection. The compliance officer also discusses consultation services and employee rights.
Documentation and Recordkeeping Information List
During an inspection, the compliance officer will request pertinent information specific to the worksite, including, but not limited to 300 log summaries and training documentation.
Employer required documentation can be found in OSHA standard 29 CFR 1904. The compliance officer may request access to a lot of different records. See the complete list on page 67.
The Outcome – After the Initial Visit
When an inspector finds violations of OSHA standards or serious hazards, OSHA may issue citations and fines. OSHA must issue a citation and proposed penalty within six months of the violation’s occurrence. Citations describe OSHA requirements allegedly violated, list any proposed penalties and give a deadline for correcting the alleged hazards. Violations are categorized as willful, serious, other-than-serious, de minimis, failure to abate, and repeated.
In settling a penalty, OSHA has a policy of reducing penalties for small employers and those acting in good faith. For serious violations, OSHA may also reduce the proposed penalty based on the gravity of the alleged violation. For information on penalty ranges, see www.osha.gov/penalties.
It goes without saying; the nicer you are to the compliance officer, the better the outcome. It’s also important to understand that when an employer has been notified previously of a hazard by OSHA, or when written documentation in your workplace shows OSHA that management had knowledge of a hazardous condition, and did not address it, this often becomes a willful violation. In other words, if a safety committee has warned management of a hazard, and management chose to disregard their concerns, this becomes willful. No good faith adjustment will be made for alleged willful violations.
The Appeal Process
Citations are reviewed by the OSHA supervisory staff prior to being sent out to the employer. The whole process from the inspection to the employer receiving the actual written citation may take four or five weeks. When OSHA issues a citation to an employer, it also offers the employer an opportunity for an informal conference with the OSHA area director to discuss citations, penalties, abatement dates or any other information pertinent to the inspection.
Employers have 15 working days after receipt of citations and proposed penalties to formally contest the alleged violations and/or penalties by sending a written notice to the area director. When attending this conference, the employer needs to have all of their required documentation materials in place. The employer may receive leniency, and need not go further.
The agency and the employer may work out a settlement agreement to resolve the matter and to eliminate the hazard, and reduce the citation. OSHA proclaims that its’ primary goal is correcting hazards and maintaining compliance rather than issuing citations or collecting penalties. OSHA forwards the contested citation to the Occupational Safety and Health Review Commission for independent review. When citations, penalties and abatement dates are not challenged by the employer, or settled, they become a final order of the Occupational Safety and Health Review Commission.
When an employer decides to appeal the OSHA citation, it’s best that they be prepared. Understanding, that OSHA standards are actually federal laws, and the employer is on an uphill battle. You may want to hire a professional safety lawyer in some cases to help you navigate the process.
When the workplace can prove that they have appropriately addressed every hazard identified in a prompt manner, they very well may see a reduction in the citation amount. It has been my experience that employers are rewarded for their efforts, and it’s my advice that the employer do exactly that; address the hazards promptly. When willful violations are proven, and those resulted in a serious injury or death, the appeals process is most likely a waste of time.
Ultimately, it’s the responsibility of the workplace to assure that the employees have a safe and healthy place to work. When the workplace has provided the required training, documentation, followed OSHA standards, and disciplined personnel that have not followed safety program policies and procedures, you’re in good order for an appeals process. Of course, when an employer has everything in place, they’re not likely going to get an OSHA citation in the first place.
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@gmail.com.
Records You May Have to Show an Inspector
Access to exposure and medical records: If you keep or have access to your employee’s exposure and medical records, you must ensure that they also have access to them.
Employee training: The majority of OSHA rules require that you document the training you give your employees.
Equipment maintenance and testing: It’s a good idea to keep records of any equipment that needs regular service or maintenance. It’s also a requirement for some of our rules.
Exposure monitoring: Exposure monitoring tests the air to determine the concentration of contaminants in your workplace. Records are usually required to show you are in compliance.
Fit testing: Fit testing ensures that a respirator will fit the person who wears it. Records are required for fit test results.
Hazard communication: If your workplace has hazardous chemicals, your recordkeeping must ensure that your employees know about the chemicals and know how to protect themselves.
Injury reporting: Required injury reporting forms for many employers include the OSHA 300 Log and 300A Summary and DCBS form 801. Hospitals and ambulatory surgical centers must also keep a log of health care assaults.
Medical evaluations and surveillance: Keep records of medical evaluations and medical surveillance for employees who wear respirators and employees who are exposed to certain hazardous substances.
Workplace inspections: Many OSHA rules require a written and dated inspection report signed by the employee who did the inspection. Inspection reports may include; Quarterly safety inspections, forklift inspections, equipment inspections, personal protective equipment inspections, and fire extinguisher inspections.
Workplace Injury and Illness Investigations: OSHA requires that all recordable injuries and illnesses be inspected by either management personnel, or the workplace’s safety committee. Each workplace should have a written investigation for each entry in the OSHA 300 log.
