Surviving an OSHA inspection

What to do if an investigator shows up on your doorstep

STAMPING JOURNAL® MAY/JUNE 1998

May 15, 2001

By:

Weathering an inspection by OSHA is a matter of knowing your operation from top to bottom and being prepared for a visit at all times.

Every employer knows about– and some fear a visit from– the Occupational Safety and Health Administration (OSHA), the federal regulator and watchdog of workplace health and safety. Unless an employer has successfully undergone an OSHA inspection or one by a parallel state agency, some surprises may arise when an inspector from the agency comes knocking at the door.

Surviving one inspection does not necessarily guarantee future success with such inspections. Because of the potentially serious legal consequences and costs of an OSHA inspection, every employer should be prepared and informed in advance. This is especially true today, because in January 1998, OSHA launched its cooperative compliance program targeting those industries and employers with high incident rates of workplace injuries.

In addition, OSHA launched its National Emphasis Program for Mechanical Power Presses in 1998 with the purpose of reducing or even eliminating the incidence of workplace hazards associated with mechanical power presses. Through these programs, OSHA is aggressively targeting inherently high-risk industries and employers who have high incident-rate records.

This article provides basic information about OSHA inspections and recommends some strategies for surviving them.

What Triggers an OSHA Inspection?

Several events can prompt an OSHA inspection of a facility.

Employee Complaints. An employee complaint will usually bring OSHA to the door, although the agency may sometimes inquire informally by letter first. OSHA receives complaints confidentially and will not disclose the identity of a complainant in most circumstances.

It is a violation of law for an employer to retaliate against an employee who files a complaint, even a frivolous one. For example, an employer who fires such an employee may be subject to a lawsuit by OSHA and could be ordered to pay punitive damages and to reinstate the worker with back wages and benefits. Other forms of retaliation, such as demotion or harassment, can also bring an OSHA lawsuit and expose an employer to civil penalties.

Serious Workplace Incidents. Deaths or serious injuries must be reported to OSHA and will also trigger inspections. Fatalities, catastrophes, or life-threatening situations must be reported within 48 hours of an incident by calling OSHA at 800-321-OSHA or the agency's area office.

General Scheduled Inspections. OSHA conducts random or routine inspections from time to time.Targeted Inspections. With OSHA's new targeting program, an inspection of targeted employers is guaranteed unless an employer enters into a cooperative compliance program with OSHA.

The agency has targeted facilities with high lost-workday incidence rates attributable to workplace injury or illness and those with histories of noncompliance. Affected employers should have received letters from OSHA in December 1997 advising them that they are on the target list and inviting them to enter into a voluntary compliance program with the agency. Some of those participating in the voluntary compliance program may not be inspected; others will be.

Must an Inspector Have an Inspection Warrant?

OSHA inspectors are empowered to obtain an inspection warrant if a facility does not voluntarily admit an inspector. An inspector is likely to obtain a warrant even before appearing at an employer's door if the examiner believes that a facility will oppose the inspection. In any case, a company has a right to require that an inspector have a warrant and may refuse entry if it has reason to believe a warrant is not valid.

The employer has the option to consent to an inspection without a warrant, to require a warrant, or to test the validity of a warrant in court before permitting an inspection. This decision should be made with assistance of legal counsel.

How Is an Inspection Conducted?

It is important to understand how an inspection is performed and an employer's rights during such a visit. Specific phases of an inspection unfold from the time an inspector arrives until he or she departs.

The Opening Conference. Before an actual inspection begins, the OSHA inspector should meet with the employer's representatives to explain the purpose and reason for the visit (e.g., triggered by a complaint, a fatality, catastrophe).

If the company is participating in an OSHA compliance program or has received an inspection exemption from OSHA, it should immediately inform the inspector of that fact at the opening conference. The company representative should ascertain precisely the scope of the inspection and ask for a copy of the OSHA standards that will apply to the inspection.

If an inspection is related to an employee complaint, the company should request a copy of the complaint. Although the complaining employee's identity may be withheld, the employer is entitled to know the subject matter of the complaint. The employee's name can be blacked out to preserve anonymity.

It is important to have the inspector define and explain the reasons for scrutinizing specific areas and the specific health and safety considerations at issue. These elements define the focus of the inspection.

The Walkabout. At the conclusion of the opening conference, the inspector proceeds to check the premises for safety and health violations. Company representatives should not volunteer information that is not requested. The inspector will determine where the inspection begins and how long it lasts. Nevertheless, one or more company representatives should remain with the inspector at all times.

In a union shop, the union's bargaining agent may also designate a representative (typically a union steward) to accompany the inspector. Otherwise, the inspector may identify a nonmanagement employee representative or may choose to talk privately with various employees during the inspection tour.

In any case, management may not select a nonmanagement employee representative for the walkabout or attempt to influence an inspector's selection of employees. However, the inspector should limit employee consultations to a reasonable number and should not unduly interfere with their work.

If an inspection appears to be expanding in scope beyond what was defined in the opening conference, company representatives should not hesitate to point that out and question the change in plans.

Depending to a certain extent on an inspection's scope and purpose, an inspector's intention is to evaluate the facility's safety and health conditions and procedures against general OSHA regulations, as well as standards that specifically apply to the industry.

An inspector may take photographs, instrument readings, air samples, spill samples, and other measurements. If so, a company representative should take duplicate photos and samples and record the same readings and measurements for later comparison, if necessary.

If an inspector points out a violation that can be corrected immediately, that correction should be made. The inspector may still issue a citation, but immediate abatement demonstrates good faith and may lower the penalty that would otherwise be assessed for the violation.

Finally, if an inspector is unduly hostile, abusive, or intrusive beyond the initially defined scope of the inspection—especially if the inspector attempts to exceed the parameters specifically set forth in a warrant—an employer should immediately consult with legal counsel about requesting that the inspection be adjourned pending a meeting with the area director or for other possible legal action before the walkabout continues. In any case, company representatives should not respond to an inspector in a hostile manner—they should maintain a professional, matter-of-fact demeanor.

Examination of Records. The inspector examines a company's record keeping to ensure compliance with OSHA regulations. These include incident records of injuries, illnesses, fatalities, and exposures to any toxic or hazardous substances. The inspector will ask for verification that a copy of OSHA's form 200 summary has been posted, as well as the required OSHA health and safety poster. The inspector will also examine the company's training records, hazard communications (HAZCOM) program, and material safety data sheets (MSDSs).

The Closing Conference. After the inspection, the inspector will confer with the employer and employee representatives. The company representative should ask the inspector to explain problems and needs that were identified during the walkabout. This provides an opportunity to ask questions about corrective action (abatement) and anticipated citations and penalties.

An inspector is highly unlikely to disclose specific penalties, but he or she should explain those deficiencies that were observed during the inspection and the employer's rights to appeal any adverse findings and penalties. The inspector should provide the employer with a copy of OSHA publication 3000, which explains employer rights and responsibilities following an OSHA inspection. The inspector will file a report with the area director, who determines whether to issue citations and assess penalties.

Are Trade Secrets Protected in an OSHA Inspection?

Inspectors are prohibited by law from disclosing a company's trade secrets and proprietary information. An inspector who violates this law can be subject to criminal prosecution, fines, and imprisonment. This is one reason for accompanying an inspector during the walkabout. Company representatives should identify proprietary processes, formulae, and other trade secrets that an inspector observes so that he is aware of the confidential nature of the information.

A particularly sensitive issue arises when an inspector wants to take a photograph in which a trade secret may appear. However, the inspector may agree not to take the photo or to shoot it in such a way that the resulting image would be useless to a competitor.

What Are the Potential Penalties?

A range of potential citations and penalties is possible for violations identified during an OSHA inspection. The area director has some discretion in determining the nature of and the penalty for a violation. Citation categories and associated penalties include:

  1. De minimus, penalties unlikely.
  2. Other-than-serious, $1,000 to $7,000.
  3. Serious, $1,500 to $7,000.
  4. Posting, up to $7,000.
  5. Willful, $5,000 to $70,000.
  6. Criminal willful (determined after a finding of guilt in a criminal proceeding), up to six months' imprisonment and a $250,000 fine for an individual or a $500,000 fine if the employer is a corporation (for a first violation).
  7. Repeated (determined in a follow-up inspection), up to $70,000.
  8. Failure to abate, up to $7,000 per day.
  9. Record keeping, typically an "other-than-serious" finding unless it involves falsification of records, which carries a potential six-month imprisonment and a fine of up to $10,000.
  10. Assaulting, interfering with, or resisting an inspector in the performance of his or her duties, imprisonment for up to three years and a fine of up to $5,000.

What If a Notice of Citations and Penalties Is Issued?

OSHA enforcement actions can almost always be informally negotiated with an area director. Upon receipt of a notice of citation and penalties, an employer should request an informal conference with the area director. The employer should also:

  1. Make sure that the inspector has accurately stated facts and cited the correct regulations in support of a citation.
  2. Identify items that have already been abated.
  3. Negotiate for lower penalties and the dismissal of some of the citations.

Remember, however, that an employer has only 15 working days to contest such a notice. If an accord is not reached with the area director within those 15 days, an employer must either accept the notice as issued and pay the penalties or submit a written objection to the area director, who forwards the appeal to the Occupational Safety and Health Review Commission (OSHRC). The action temporarily halts enforcement of the notice of citation and penalties.

OSHRC is an independent review board that is separate from OSHA. The employer's appeal is assigned to an administrative judge. The judge's decision can be appealed through a request for reconsideration by OSHRC commissioners, whose rulings may in turn be appealed to a U.S. Court of Appeals.

Can a Company Effectively Prepare for an Inspection?

Effective preparation is an ongoing process that requires knowledge of applicable OSHA regulations and vigilant attention to self-inspection and record keeping. Here are some keys to survival:

1. OSHA Expert. A company should designate a management-level individual to be its in-house OSHA expert. This person should attend seminars—many are offered free of charge by OSHA and state agencies—and should have time to devote to the job. Many employers running on tight budgets understandably but mistakenly give the OSHA hat to a manager who is already fully occupied with other duties. This is not effective and is likely to give short shrift to OSHA issues.

Dealing with OSHA issues may or may not be a full-time job, depending on the size of the facility and number of sites. Larger facilities should have a full-time OSHA manager who is assisted by others. Smaller facilities may require only one person to devote full- or part-time attention to the subject.

In any case, the person responsible for OSHA compliance must have the knowledge and the time to implement OSHA compliance measures effectively with respect to the physical plant, operations, record keeping, and training. The OSHA officer must also be empowered by management to enforce the agency's compliance measures.

In addition, a company should communicate to its work force that observance of OSHA requirements is important. Postings, written policies, regularly scheduled safety meetings for managers and line supervisors, and training that involves all employees help to convey such a commitment.

2. Training. OSHA requires appropriate periodic safety training for all categories of employees, including office and other white-collar workers, as well as manufacturing and production employees. The training must be designed to educate employees on OSHA safety and health issues relevant to the jobs they perform and the equipment they use.

Training must be documented. Sign-up sheets should state the training topic, place, and date and should bear each attendee's printed name and signature. Employees who miss such meetings should be required to attend makeup sessions. Training record files should be maintained for an OSHA inspector's review. The files should contain copies of any handouts, charts, photos, videos, etc., that document the substance of the training.

If proper training is conducted, no employee can claim ignorance as an excuse for failing to maintain a work area in a safe manner. Likewise, supervisors should be held accountable for ensuring that safety devices on equipment are in place and operative and that employees wear required personal protective clothing or equipment. Employees who refuse to comply should be disciplined and required to undergo more training.

3. HAZCOM Program. Every employer is required to maintain on-site MSDS records for each potentially hazardous chemical or compound kept or used on the premises. These can range from industrial chemicals such as acids used in production processes to cleaning fluids and such seemingly innocuous substances as paper white-out fluids routinely used in offices.

HAZCOM training is required by OSHA to acquaint employees to the presence of hazardous substances, their safe usage and proper storage, and the locations of MSDS books and first aid kits. MSDS records should be accompanied by a narrative called "The Hazards Communications Program." The written HAZCOM program and MSDSs must be readily accessible to employees.

4. Self-Inspection. Unannounced in-house inspections should be conducted periodically, and deficiencies should be noted and corrected.

What Help Can Be Obtained from OSHA?

OSHA prides itself on being proactive in assisting employers with workplace safety and health issues. A wealth of free information about OSHA regulations, guidelines, and other topics is available for the asking. Many employers are reluctant to introduce themselves to their OSHA area office, but other sources of information from the agency are available. For example, OSHA presents an array of topics on the World Wide Web at www.osha.gov.

In addition, OSHA sponsors a free consultation service through the states, which is separate from the inspection process. A company may request this service, which provides a consultant who will study the entire plant and make recommendations.

The process is confidential and will not be reported to OSHA's inspection arm. However, the company must commit to correcting in a timely manner serious workplace safety and health hazards that are identified. This service is described in OSHA's Fact Sheet No. 92-04.

An OSHA inspection may be neither welcome nor enjoyable. However, armed with an understanding of the process and the potential issues involved, coupled with advance planning and judicious use of legal counsel, a company can survive an inspection.



Linda C. Ashar

Contributing Writer

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