OSHA Inspections
When the Occupational Safety and Health Administration (OSHA) comes knocking, what should a facility expect and how should it be handled?
The OSHA inspector is there for one of two reasons: to conduct a programmed inspection or an unprogrammed inspection. A programmed inspection is when the inspection is scheduled due to selection criteria by OSHA. This criteria may be injury rates, death rates, exposure to toxic substances or a high amount of lost workdays for the type of industry you are in. An unprogrammed inspection is when an employee gives a formal complaint to OSHA regarding a possible unsafe working condition or if the employee feels he/she is in imminent danger at the workplace.
When an inspection is going to be conducted, there are aspects of the inspection that you should know and understand. If the inspector does not have a warrant, you do not have to let the inspector into the facility. This is your 4th amendment constitutional right. It is your decision whether to require a warrant or voluntarily consent to an inspection.
OSHA issues an inspection checklist, but they also advise inspectors to develop their own. The topics a checklist may include are listed below. It would be wise to prepare detailed area self-inspection lists for your operations and have employees from that area take turns checking for any hazards they encounter on a weekly basis. This would help employees work safer and become familiar with any violations in their immediate work area. In addition, the facility would always be ready for an OSHA inspection.
To prepare for an OSHA inspection, designate your representative prior to the inspector’s arrival. Instruct the reception area to inform the representative when the inspector arrives. The representative should check the inspector’s credentials bearing a photograph and serial number with the nearest OSHA office. The inspector should be accompanied by your representative at all times. The representative should be the same person throughout the inspection (two or more representatives could provide conflicting information). If at any time the representative has difficulty responding to a question, he/she should call for a “time out” and get help. The representative may then go to a telephone and call for advice from an attorney or trusted knowledgeable source. Once the inspector is in, the protocol that is followed will consist of an opening conference, a tour of the facility and a closing conference.
Opening Conference
During the opening conference, which usually takes about an hour, a number of topics are discussed. General questions about your business are asked, and the following issues are reviewed.
• The purpose for the visit is explained (e.g. if it is a complaint, accident or programmed) along with the scope of the inspection (part of the facility or wall-to-wall). A copy of the complaint is given, if one is involved. Make a note of why you were selected and what is going to be inspected.
• Handouts of OSHA pamphlets are given. Keep all of them with the date and name of inspector who issued them to you.
• Trade Secrets will need to be identified and confidentiality assured for all records. Label all documents, photographs and video tapes as “Confidential—Trade Secret” (29 CFR 1903.9).
• Records that are not specified on the warrant do not have to be provided. Be careful about providing OSHA with any company documents. Don’t provide any copies or allow use of your copying equipment to take place. If the inspector wants to copy information by hand, he/she may do so (29 CFR 1903.3(a)).
The following records or programs generally are specified by the warrant:
The Hazard Communication written program for your facility. This includes provisions for labeling, material safety data sheets, employee training and a list of hazardous chemicals (See EZ Facts Document Nos. 150 and 200.)
The Lockout/Tagout written program will be reviewed and the employers representatives knowledge of it questioned (See EZ Facts Document No. 170.)
The Injury & Illness Log will be inspected (29 CFR 1904).
Exposure Records will be required for any hazardous materials to which employees are exposed.
Safety Programs will be checked to see if they are being observed.
Tour of the Facility
The route and duration of the tour is determined by the inspector and accompanying representatives. If the inspector wants to see a specific spot, take the inspector directly there, rather than walking through the plant. A detailed observation of the facility by the inspector can include talking with employees, note taking, making instrument readings, taking photos and/or using a video camera.
Never leave the inspector alone, and do not volunteer any information. Make sure department managers know to answer all questions honestly, without volunteering information. The inspector may consult with employees as long as it does not interfere with work operations and the employee does not object. He/she may also meet with the employee in private if the employee does not object (29 CFR 1903.7(b)).
During the tour, the inspector may point out things he “believes” to be violations. If you agree they are violations, you will surely be cited and fined. If you are able to correct conditions on the spot, do so, but you may still receive a citation and penalty.
If the officer takes notes or measurements, uses a camera and/or video tapes, you should do likewise. Record everything that happens, including the time and date. Get a stenographer to help with notes and someone to help with the video camera if needed.
What you say can and will be used against you. Do not engage in idle talk or chit-chat.
Never give estimates if you do not have accurate information. You may be providing OSHA with false information, which is a criminal offense.
At the end of each day’s inspection, go over your notes and measurements for accuracy and completeness. Have the notes typed (keep originals), add who said what, the inspector’s name, date, times, measuring techniques, equipment used, calibration dates and procedures, and who was present.
Closing Conference
At the conclusion of the tour, the inspector will hold a conference. The purpose of this is:
• to advise you of the conditions observed in the facility
• to obtain further information
• to relate any possible citing that may be issued, your right to appeal and time limits
• to answer your questions
If any violations were voluntarily corrected on the spot, it is essential that the inspector states that it was abated before he leaves the premises with date, time, place and a witness present.
You may be asked how long it would take and how much it would cost to correct a citing. Do not agree that they are violations, for you may be held liable by how you respond. If it is an obvious violation, providing information may help OSHA determine the time needed for abatement.
The inspector does not propose penalties. The U.S. Department of Labor area director will notify you in writing by certified mail of any citations/penalties received.
You have 15 working days to either pay the penalties or contest the citation, the penalties, or both. Failure to contest the citation confirms the penalty as final.
The next stages of contest are diagrammed in the OSHA inspection flow chart located at the end of this document. Contacting legal assistance would be advised at this point.
Violations, Classifications, and Penalties
There are different classifications of violations and penalties structured for the workplace: “Other than Serious Citation,” “Serious Violation,” “Willful Violation,” and “Repeat Violation.”
An Other than Serious Citation is given for violations that are not a threat to cause death or serious harm. For instance, lack of a label marking a refrigerator for biohazard storage. The fine for an Other than Serious Citation can be as large as $7,000.00. This can be adjusted based on the history of the business, previous violations and the good faith efforts of the employer.
A Serious Violation is when death or serious physical harm could result, and the employer knew or should have known about the hazard. An example of this is not locking out or tagging out equipment. The fine for this is up to $7,000.00 for each violation. This may be decreased through negotiations or good faith on the part of the employer.
A Willful Violation is one of the most serious violations an employer can have. This occurs when the employer intentionally and knowingly commits a violation. This type of violation also increases the penalty significantly. The penalty can go as high as $70,000 per violation with a minimum of $5,000.00 per violation. If an employee is killed on a job resulting from a willful violation, the employer, if convicted, can result in very large fines and possibly imprisonment.
A Repeat Violation where the violation has not been corrected can also result in a $70,000.00 fine, plus $7,000.00 a day until corrected.
Summary
To survive an OSHA inspection, ALWAYS BE PREPARED.
1. Understand the law (consult 29 CFR 1910, General Industry Standards).
2. Know what the inspector is likely to do.
3. Have a self-inspection program.
4. Have safety and health training programs in place and a policy on OSHA inspections that covers at a minimum:
(1) who will represent the company and (2) a statement on warrantless OSHA searches.
Representing American Airlines Maintenance Workers in Tulsa Oklahoma and Greater Southwest Texas.