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Surviving any situation depends on knowing what to expect and being prepared to manage it. An Occupational Safety and Health Administration (OSHA) inspection is no exception. Employers must know their rights and responsibilities. It is also important to realize that enforcement is a matter of discretion. Compliance officers’ actions are guided by those they serve. Understanding the administrative goals driving them and being able to see a scorecard of activity can help direct your response. Options, such as requesting a warrant, which you may not have pursued in the past, may now seem to be a better course of action. All procedures and options need to be reviewed with the current OSHA in mind.
The 2011 OSHA is all about enforcement and penalties. Time and again, David Michaels, assistant secretary of labor for Occupational Safety and Health, has expressed this in his words and deeds. OSHA added 100 inspectors to its ranks last year. Programmed inspections rose, and fewer of those inspected escaped penalty. In 2009, 25 percent of those inspected were found in compliance while only 18 percent were found in compliance in 2010. The violation scorecard also confirms a more aggressive approach. “Serious” violations increased while “other-than serious” violations decreased. The average penalty for a “serious” violation has increased to $1,107 in 2010 from $970 in 2009. This figure is sure to continue to increase in 2011 as OSHA’s new penalty structure is applied. Walking through OSHA’s inspection procedures will reveal several minor changes from the new Field Operations Manual (FOM) published at the end of 2009, offer options for response, and provide details of these new penalty calculations.
OSHA’s priorities remain the same, beginning with who gets inspected. The top priority is situations of imminent danger; these are locations where hazards exist that could cause death or serious physical harm. The next priority is fatalities and catastrophes. Incidents that involve a death or the hospitalization of three or more employees must be reported to OSHA within eight hours. An inspection will follow. The third priority is complaints and referrals.
In OSHA’s new FOM, formal and informal complaints and referrals have been redefined for clarification. Formal complaints must be in writing by a current employee or employee representative and allege “imminent danger, a violation of the Act, or a violation of an OSHA standard exposes employees to a potential physical or health harm in the workplace.” A referral can be from a compliance officer based on observations they have made; another federal, state or local agency; or the media. All other reports are considered informal complaints.
The fourth priority is planned or programmed inspections. The University of Tennessee maintains a database of construction projects. OSHA area directors submit a set of parameters to the university, which generates a random list of sites within those specifications to be inspected.
If you fall under any of the priorities mentioned above, you will most likely be inspected. The exception is an informal complaint. For an informal complaint, OSHA will typically make an inquiry by phone and fax rather than inspect. By telephone, an OSHA representative describes the safety and health concern. A fax follows with the details. Within five working days, the employer must respond in writing to identify any problems found and corrective actions taken. If the response satisfies the complaint, OSHA will not perform an on-site inspection, so it is important that, as a contractor, you make every effort to address the concern to avoid an on-site inspection. However, this does not mean you admit guilt. Merely eliminate the hazard if it does exist and demonstrate why the hazard does not exist.
If an on-site inspection occurs, you must be ready. There will be no advance notice. Every company should have a policy for managing an OSHA inspection. A designated person (or several) needs to be trained in OSHA procedures and act as the liaison with the compliance officer. Part of the training should include a consultation with the company attorney. Of the utmost importance is having a safety and health management system. This will ensure company safety programs and records are at the ready for the liaison and compliance officer.
Upon arrival, the compliance officer must show his or her credentials. Valid credentials will have a photograph and serial number. If the company owns the property where the site is, it may refuse entry to the compliance officer and request a warrant.
There are many things to consider when requesting a warrant. Legal and safety opinions vary on this procedure. Most safety professionals take the route of cooperation. Attorneys, on the other hand, will argue a warrant can chase the compliance officer away for good. In addition, the judge issuing the warrant may narrow the scope of an inspection and take up to 30 days to provide it. This could buy time to make corrections.
The circumstances should dictate your approach. If a warrant is requested, have the support of an attorney and be prepared for the legal proceedings connected to it as well as associated fees. If your company is known for requesting a warrant, the compliance officer may arrive with one in hand.
Also consider OSHA may not need a warrant. Owners or general contractors may give permission for OSHA to enter the site. Hazards in public view require no warrant nor is one needed for emergency situations. Of course, hazards alleged as imminent may be protested. The failure of a supervisor to protest a compliance officer coming on site will be taken as a waiver of this fourth amendment right. Whether there’s a warrant or not, examine all paperwork carefully. Protect your rights, and make your objections known. Warrants can be contested, and the scope of the inspection can be limited to the complaint or warrant.
Once on site, the inspection will begin with an opening conference. The compliance officer will also request records and documentation. You may ask the compliance officer to wait for a reasonable time for the designated liaison. The interpretation of reasonable time may vary by compliance officer and can depend on the purpose of his or her visit. They might be willing to come back another day. However, looking at the changes in the FOM, the potential for him or her leaving is very small, and “reasonable time” may be shorter. Under the recordkeeping regulations, you have up to four hours to produce injury and illness records. The new FOM instructs compliance officer not to wait for the records before beginning his or her walkaround.
The walkaround begins after the opening conference. Keep in mind that this can be as brief as the time it takes to show credentials and a statement of their purpose for the inspection. The employer has the right to accompany the compliance officer during the walkaround. An employee representative also is supposed to accompany the compliance officer. The representative may be a union steward, or in his or her absence, the compliance officer may select someone.
The compliance officer is looking for hazards. His or her purpose may be to investigate a specific hazard or to perform a comprehensive investigation of all hazards. The compliance officer may perform tests or take photographs and video of areas or activities of concern. On-the-spot corrections may be requested. Correct any deficiencies, and duplicate tests and photographs taken by the compliance officer.
During the walkaround, do not demonstrate activities or operations, volunteer unsolicited information or unrequested documents, or make any admissions of guilt. Also, do not discourage employees from talking to the compliance officer. OSHA has the right to interview employees and places a high value on it. On-site interviews also have advantages; a management representative or corporate counsel may be present for all supervisory employee interviews. In on-site interviews, even those conducted privately, employees are less likely to embellish. Remember, these interviews can occur during regular work hours or at other reasonable times during the course of an inspection. Inspections may remain open for up to six months.
The walkaround ends with a closing conference. The compliance officer will discuss his or her findings with the employer and the employee representatives. The compliance officer will offer possible courses of action to the employer. This includes an informal conference with OSHA to discuss the inspection as well as contesting citations and proposed penalties. The official citations actually will come from the area director, after consulting with the compliance officer. They will be sent by registered mail. The law requires you to post copies of the citation near each violation.
If the compliance officer cites you for a violation, contest it at the informal conference level even if you agree with the violation; you may be able to negotiate penalties. Consult an attorney regarding additional options for contesting citations. Employers have 15 working days after receipt of citations and proposed penalties to formally contest the alleged violations and/or penalties. Benefits of contesting violations can range from a simple reduction in penalty and nature of the violation up to the elimination of the citation altogether. Eliminating a citation or lowering its classification to “other-than-serious” has the added benefit of avoiding “repeat” violations, which can be very costly.
In order to better understand the penalties you receive, review OSHA’s new calculation. OSHA was unsuccessful in getting Congress to raise maximum penalties. The maximum fine for a “willful” or “repeat” violation remains $70,000. For “serious” and “other-than-serious” it’s $7,000. Calculating a penalty from zero dollars to the maximum is done by assigning a gravity level to the violation. This is determined by estimating the probability of harm that may occur and the possible severity of injury/illness. Under the old system, a low severity and lesser probability equal a low gravity, which was a $1,500 fine. A high severity and greater probability was a high gravity with a $5,000 fine. The new system doubles the low-gravity penalty by assigning it to a $3,000 penalty. The new high-gravity fine is $7,000, or $2,000 more. This puts the penalty at the maximum level.
Under both systems, the assigned penalty could be reduced by several factors. Under the new FOM, OSHA decreased reductions for employer size as follows: 1–25 employees went from 60 percent to 40 percent, 26–100 employees from 40 percent to 30 percent and 101–250 employees from 20 percent to 10 percent. Reductions for good faith remained the same. Employers with an effective safety and health management system received either a 15 percent or 25 percent reduction in their penalty. The adjustments for company history of violations now take on a whole new meaning. The 10 percent reduction for any company without a “serious,” “repeat” or “willful” violation in the last five years remains the same. The new twist is, if you received a violation in the last five years, your penalty increases by 10 percent.
Whether we look at the changes to the system or OSHA’s aggressiveness, the bottom line is safety. The only way to avoid violations is to have an effective safety and health system in place. The tighter OSHA gets on its enforcement, the more important your safety and health management system will become and the greater the dividends it will pay.
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 and [email protected].