When a Compliance Safety and Health Officer (CSHO) from the Occupational Safety and Health Administration (OSHA) visits an unprepared job site, the reactions can be amusing. Usually, the word travels throughout the site and employees scramble. Personal protective equipment, such as hard hats, may be put on. A last-minute attempt is made to clean up loose materials or change other noncompliant set-ups. Certain operations may stop. Although these actions may help avoid a citation or two, they don’t represent the proper way to prepare for and survive an OSHA inspection. More importantly, it is contrary to the purpose of the Occupational Safety Health Act, which is to protect the worker. A strategy must be developed for inspection survival and workplace safety.
The concepts of inspection survival and employee safety should blend together. This is truer today than it was a decade ago. OSHA is learning to focus on employer actions that truly make a difference. These elements are part of the strategy provided here. However, an element of enforcement to the letter of the law remains. Therefore, survival and the strategy for it retain an element of learning, reacting to, and holding OSHA accountable to their procedures.
The first procedural element of an OSHA inspection is determining whom to inspect. It is impossible for OSHA to visit the 6 million-plus businesses in the United States. To have the greatest impact, a priority system has been established. The first level goes to “Imminent Danger.” Locations with situations that will cause death or serious physical harm with reasonable certainty are first inspected.
The second priority is a “Catastrophe (one in which three or more employees are hospitalized) or Fatality.” Employers must report fatalities or catastrophes to OSHA within eight hours. Since incidents are often reported by the news media, employer compliance is a must.
The next level is a response to “Employee Complaints.” If an employee or ex-employee feels they are in imminent danger or threatened with physical harm, OSHA will inspect. In certain cases, OSHA may verify the complaint by calling the employer and providing an opportunity to respond. If proof is provided and hazards are addressed, no onsite inspection is needed. An effective safety and health program with a procedure directing employee complaints to a safety coordinator can prevent OSHA complaints.
The next level is the “Programmed High-Hazard” inspection. Establishments with lost workday rates at or above the Bureau of Labor Statistics national rate will be inspected. The final priority is the “Follow-Up Inspections.” These are performed to ensure cited items have been abated.
There are other inspections, which do not fall in these categories. National and local “Special Emphasis” program inspections target industries or hazards such as silica. Verification inspections are a component of many industry/OSHA partnerships. From a survival perspective, a word of caution must be offered about OSHA partnerships. When OSHA initiated the partnerships, they required that 10 percent of the participants receive a verification inspection. Statistically, less than one percent of the businesses get inspected. Early partnerships with OSHA increased the inspection threat tenfold. Make sure partnerships in which you get involved do not mandate aggressive verification inspections.
If OSHA does come on site, there are a number of approaches they can take. They may execute a comprehensive inspection, a focused inspection or a complaint verification. The simplest is complaint verification. In response to a specific complaint, OSHA may simply need to view that hazard. In a focused inspection, OSHA targets its attention on the four major hazards: Falls, Struck by, Caught in or Between, and Electrical. A Focused Inspection may take but a few hours. OSHA verifies that the employer has a safety program, a competent person to oversee hazardous operations, and then tours the site for serious hazards. If other than serious hazards are found, the employer is given an opportunity to correct them without receiving violations. A comprehensive inspection is a thorough review of all job site conditions. All hazards are cited. An inspection may start out as one type and end as another depending on the observations made by the CSHO.
Regardless of the approach, there are protocols followed for a visit. The first is allowing entrance onto the job site or workplace. CSHOs should identify themselves. You have the right to request a warrant. However, warrants are a complex issue. On a construction site, the host, prime contractor or construction manager may have given permission. If a violation is in plain view, no warrant is needed. Furthermore, there are a number of opinions on the value of requesting a warrant. Most safety professionals will advocate cooperation, noting the zeal a disgruntled CSHO will have when he or she returns with the warrant. Employers with access and resources for legal counsel will be advised to request the warrant. Historically, fewer citations have been issued when a warrant is requested under the guidance of legal counsel. Warrants can restrict the scope of an inspection or at least secure your rights during the inspection.
An OSHA policy should be established. All employees should be aware of the policy and what to do when a CSHO arrives. This can include requesting a warrant or that the CSHO wait until an appropriate company representative arrives on site. A 45-minute or hour wait is not unreasonable. If a written company policy exists, a request for the CSHO to return another day may be honored.
To begin the inspection, the CSHO should hold an opening conference. This will include a discussion of why the job site was selected and the scope of the inspection. If the inspection is the result of an employee complaint, a copy should be provided minus the name of the employee. Next, the CSHO will want to see your paperwork. Written programs, the OSHA 300 Logs and other accident information are important to the inspection.
The written safety program is the key. It should be a working document. Be sure it addresses the four major points referenced by OSHA as being a part of an effective program:
1) Management Commitment and Employee Involvement—Policies should express management’s position on safety. Procedures for accident investigation, safety meetings and other basic safety functions should include an element of management review or involvement. Procedures must include or encourage employee involvement. Include accident reporting and notification of safety hazards procedures in the program.
2) Hazard Analysis—The program should be based on an analysis of hazards. Have accident records, accident investigations and site inspections been performed to determine hazards?
3) Hazard Control—Written programs and procedures must address hazards noted. Be sure the engineering controls, administrative controls and personal protective equipment are in place.
4) Training—The program should explain how orientation training, ongoing training and supervisor safety training is accomplished.
Following the paperwork review, the CSHO will have an employer representative and an employee representative accompany them on a site tour. The destination and duration of the inspection are determined by the CSHO. If the CSHO asks to see a particular area or condition, go directly to that area. Avoid detours or a route that may expose more of the job site to the CSHO for review. A great preparation for the site tour is to research the Frequently Cited Standards on the OSHA Web site (http://www.osha.gov/oshstats/std1.html) for the industry. The report provides insight to those conditions OSHA usually cites.
During the tour, the CSHO may take photographs or video footage. Be sure to take your own photos. The CSHO may ask questions, point out violations and/or direct changes. Keep answers brief. Do not admit error or argue. If possible, make corrections as requested. Employees, as well, may be interviewed. They should know that they have a choice of whether or not to answer the CSHO’s questions. Include a statement in the company OSHA Policy identifying employee rights during an inspection. Depending on the conditions to be observed, the CSHO may return on another day. Industrial hygiene or other CSHO experts may return to perform monitoring.
When the inspection is complete, the CSHO will conduct a closing conference. This may be brief or comprehensive depending on the CSHO. Unsafe conditions may be reviewed, but citations will not be given at this time. The citation with penalties and abatement dates are sent by certified mail from the OSHA Area Office. Penalties are assessed based on the gravity. This is the degree of severity of a potential injury and the probability the injury will occur.
Upon receipt of the citations, you have 15 days to file a formal Notice of Contest. You may also petition for modification of the abatement date. Before that deadline, schedule an informal hearing with the area director. This provides an opportunity to negotiate penalties and/or fight the citation. OSHA has erred in citing standards and even interpreting whether an actual hazard exists. Review the citations and prepare your case. If you are not satisfied with the result, file a formal Notice of Contest. The case will be sent to an administrative law judge. Appeals to the judge’s ruling can be taken to the OSHA Review Commission, and appeals of their decision may go to the Federal Court of Appeals, but rarely do.
Hopefully, an appeal is unnecessary. The goal is to avoid citations. In review, the actions to be taken to survive the inspection are, first and foremost, to be aware of your rights and the procedures OSHA must follow. Prepare an OSHA Policy for your company to ensure employees know how to properly respond to a visit from a CSHO. Be sure that the company safety program includes the elements of OSHA’s Four Point Plan. Test the company’s compliance by comparing the job site with the frequently cited standards for the industry and make corrections as needed. If a citation is issued, determine a strategy for your appeal, negotiate a penalty settlement or fight the accuracy of the citation. EC
O’CONNOR is with Intec, a safety consulting, training and publishing firm that offers on-site assistance and produces manuals, training videos and software for contractors. Based in Waverly, Pa., he can be reached at 607.624.7159 or firstname.lastname@example.org.