OSHA inspection policies change frequently.
Based on our industry experience, here's a look at the directives, with what's new first.
OSHA's New Inspection Directive:
A new national directive to OSHA inspectors requires certain evaluations in every facility they visit, even if the employer's injury-and-illness records show a below-average rate. Last year, OSHA issued an approximated 174,396 citations. That equals 500 citations per day, one every three minutes.
Significant Policy Change:
OSHA Executives characterize the new directive as "a significant policy change in the way OSHA safety inspections will be conducted."
The directive increases the kind and the amount of information the compliance officer must obtain during a record-only inspection. In addition to the hazard communication component included in such inspections, compliance officers will also review the employer's safety and health management programs, both overall specific, and survey "high hazard" areas of the workplace.
Finally, the directives give OSHA inspectors authority to expand a record-keeping inspection to a comprehensive safety and health investigation if observed conditions warrant it.
What can you expect now?
Hazard Communication Check: Compliance with the principle elements of the hazard communication standard. To ensure that the employer has an effective hazcom program, the inspector will conduct employee interviews and document their responses. During a brief tour of the facility, the compliance officer will confirm that a written hazcom program does in fact exist, that there is an inventory of hazardous chemicals used at the site, the existence and availability of material safety data sheets (MSDS) in the work area, the labeling of in-plant containers and the labeling of containers received from suppliers. Particular attention will be given to the effectiveness of required training, using the employee interviews as a guide.
Lockout / Tagout: OSHA inspectors have just begun to "target" this safety requirement during their inspections since failure to control energy adequately accounts for nearly 10% of the serious accidents in many industries. Inspectors will be looking for a written program that consists of specific procedures for each machine for lockout/tagout, training, accountability of engaged employees and administrative tools.
Machine Guarding: OSHA issues more citations for guarding problems than for virtually any other hazard. Inspectors will be looking for anything that moves with a "nip-point," anything that is very hot, that creates sparks or chips, that can catch or corner workers, or where the worker can call from.
OSHA Notice: Compliance officers will be looking for this notice, known as Form 2203, the "Job Safety & Health Protection" poster, to be on display in a conspicuous place in the workplace.
Personal Protective Equipment: OSHA will always make considerable note of the use of PPE at the facility, the training of employees to wear that equipment, and the enforcement of its use on the job.
Bloodborne Pathogens: For this standard, inspectors will be looking for an exposure-control plan, for engineering controls, at work practices, at personal protective equipment, housekeeping, signs and labels, and employee training for disease caused by microorganisms.
What Will Trigger An Expansion To Comprehensive Inspection?
The inspection will be expanded from a partial tour to a comprehensive inspection based on the following factors:
Lack of Comprehensive Safety and Health Program. OSHA's field operations manual guides compliance officers to evaluate the employer's safety and health program, whether written or not, along the following lines:
- The degree to which the employer is aware of potential hazards present in the workplace and the methods used to control them
- Plan and schedules the employer has to implement engineering or administrative controls
- Emergency control and evacuation procedures
- Programs for the selection, use and maintenance of personal protective equipment
Significant Deficiencies: The inspector will look for significant deficiencies in specific programs such as respirator protection, hazard communication, fire protection and lockout/tagout.Serious Violations of Standards: The inspector will note serious violations of safety and health standards uncovered during the plant tour.
- If there are concentrations of injuries and illnesses in specific areas of the plant
- If there has been significant past history of serious safety and health violations at the plant
- Poor housekeeping; blocked emergency exits and aisles
How to Handle an OSHA Inspection:
Among your rights are these:
- In most cases, refuse to let the inspector in without a warrant
- Contest a warrant before or after the inspection
- Limit the scope of inspection to complaint or warrant
- Accompany the inspector
- Have an opening and closing discussion conference
- Contest a fine
Exercising your rights may help you gain the most in increased safety and health in your workplace while at the same time reducing the potential liability and future legal hassles.
OSHA Has The Right To Inspect:
The OSH Act grants representatives from the Department of Labor the right to inspect any place of employment in order to determine whether an employer is in compliance with the Act's safety and health standards. However, such inspections must occur at reasonable times during the work day, within reasonable limits, and in a reasonable manner. Inspections are usually conducted without much advance notice, though if notice is given, it is typically no more than 24 hours.
How OSHA Selects Inspection Sites:
When should you expect a visit from a government inspector? Both OSHA and the EPA are authorized to inspect your facility at any time. Most likely, however, inspection priorities fall in one of the six general categories below, in order of highest priority.
Imminent Danger: Imminently dangerous situations are given top priority. An imminent danger is any condition where there is reasonable certainty that a danger exists which can be expected o cause death or serious physical harm immediately, or before the danger can be eliminated through normal enforcement procedures.
Catastrophes and Fatal Accidents: Second priority is given to investigation of fatalities and accidents resulting in hospitalization of five or more employees. Such catastrophes must be reported by the employer within eight hours of the accident. OSHA investigates to determine the cause of the accident, whether existing OSHA standards were violated, and whether additional standards are necessary to help avoid a recurrence of similar accidents.
Employee Complaints: Approximately one-third of all investigations belong to this category - inspections OSHA conducts as a result of receiving a written complaint by a current employee. Complaints involving serious hazards are inspected within five working days, while complaints involving other-than-serious conditions are inspected within 30 working days. Under the OSH Act, the agency is required to furnish the employer with a copy of the employee complaint. However, the employee's identity remains confidential and the employer is prohibited from taking serious action against the employee because of the complaint. OSHA will not inspect based on a complaint received from a terminated employee.
Programmed Inspection: Aimed at specific high health risk industries and occupations, or other industries in OSHA's current inspection procedures, these inspections are conducted on the basis of such factors as the injury-incident rates, previous citation history, employee exposure to toxic substances, or random selection. An example of an industry on the programmed list is the meatpacking industry.
Follow-up Inspections: A follow-up inspection determines if previously cited violations have been corrected. If an employer has failed to abate a hazard, the compliance officer informs that you are subject to "failure to abate" alleged violations and proposed additional penalties while such failure to abate or violation continues.
Records Review: A records review is an examination of the employer’s injury-and-illness records to determine whether there will be a comprehensive inspection of the workplace. The compliance officer reviews the OSHA Form 200 (log of occupational injuries and illnesses) and employment data of the establishment. Using this data, the compliance officer calculates the lost workday injury (LWDI) for the establishment. This figure is compared to the national average for that industry as published by The Bureau of Labor Statistics. If the calculated LWDI rate is below the Bureau's rate, the compliance officer will not normally conduct a comprehensive safety inspection. If the LWDI rate is above the national average, and inspection will be conducted.
Should You Request A Warrant?
When presented with a request for an inspection, an employer may either consent or request that OSHA obtain a search warrant prior to the inspection. Based on what we have learned from employers who have been inspected, the consent inspection is the better choice. In the end, it proves to be less troublesome, less costly, and more beneficial to the employer. It should be noted that giving an OSHA inspector permission to enter, inspect, review records, or question any person does not imply a waiver of any cause of action, citation, or penalty.
Here is the viewpoint, however, of an attorney experienced in OSHA inspections, both with and without warrants. The attorney recognizes legitimate reasons for allowing the inspector in the door without a warrant, but suggest that it is often to the benefit of the organization to insist on a warrant, although in the end the decision is always yours on whether you want them to inspect your job site or not. The following are her reasons and explanations:
- "The inspector may not return - In many cases, especially if the inspection is routine, the inspector may just walk away for good."
- "The warrant may have a narrow scope - Many federal judges draw narrow warrants strictly limited to the specific complaint alleged in the affidavit put before the judge. This scope may be narrower than that accorded to the OSHA inspector without a warrant."
- "You buy some time - The warrant won't be issued right away. In some cases, inspectors wait as many as 30 days. If you know of any existing hazards, you'll have some time to remedy them and avoid an exceeding fine."
- "The risk is small - Because OSHA has little discretion in fining and citations, and because the settlement process is the same whether a warrant has been issued or not, there is little risk of greater penalty for those who insist on a warrant."
Conducting the Inspection:
Once an OSHA inspector has been permitted to enter the workplace, either voluntarily or by means of a warrant, the employer should carefully ensure that the proper administrative procedures are followed and that the employer's rights under the OSH Act are preserved.
The employer should be aware of any subsequent enforcement proceeding. Accordingly, the employer may wish to supply only information which is required to be maintained or provided under the OSH Act or OSHA regulations.
Inspector Credentials:
When the OSHA compliance officer arrives at the establishment, he or she displays official credentials and asks to meet an appropriate employer representative. Employers should always ask to see the officer's credentials.
An OSHA compliance officer carries the U.S. Department of Labor credentials bearing his or her photograph and a serial number that can be verified by calling the nearest OSHA office. Anyone who tries to collect a penalty at the time of inspection, or promotes the sale of a product or service at any time is not an OSHA compliance officer. Posing as a compliance officer is a violation of law; suspected impostors should be reported immediately to local law enforcement agencies.
Opening Conference
An OSHA inspector must hold an opening conference with the employer, and will give the opportunity for an employee representative to attend. Under no circumstances may the employer select the employee representative for the walkthrough. The inspector will then state the basis and scope of the inspection, including any standards that apply. The employer will be given a copy of an employee complaint, if applicable. The employer should carefully review these documents in order to ensure that the inspection remains within the limits of the inspector's authority.
The inspector may request other information concerning, for example, the nature of the employer's operations, or seek to examine safety and health records maintained by the employer. An employer may wish to provide only those records required to be maintained under the OSH Act. Employee health records should not be disclosed unless adequate safeguards to protect the privacy of the employees are provided.
Employers should also be sure to inform the inspector of all areas that contain trade secret information. Any information obtained by OSHA from an inspection of those designated areas will be labeled as "Confidential - Trade Secret," so that disclosure of the information will be prevented.
Inspection Tour
Both the employer and employee representatives have "walk-around" rights to accompany the inspector during the inspection, although the employees need not be paid by their employer at this time. The route and duration of the inspection are determined, however, by the compliance officer.
During the inspection, an employer should perform the same activities undertaken by the inspector, such as conducting both air and personal monitoring, taking photographs, and taking notes of the types of measuring instruments and procedures utilized by the inspector. This information could become useful in a subsequent enforcement proceeding, both as evidence at the hearing or in a settlement negotiation. If the inspection is conducted pursuant to a warrant, the warrant should indicate the investigative techniques to be undertaken by the inspector. Note that the employer is not obligated to demonstrate the operation of any machinery or processes.
An inspector may interview employees to the extent that such discussions do not interfere too greatly with the performance of work. Each employee is protected under the OSH Act from discrimination for exercising safety and health rights. The inspector, in fact, need not reveal the identity of the employee(s) interviewed. Posting and record-keeping may be checked during the inspection tour as well.
Closing Conference
After the inspection, the compliance officer will conduct a closing conference with the employer or employer representative and the employee representative. During the conference, the inspector will advise the employer of any violations observed and all apparent violations for which a citation may be issued or recommended. The employer is also informed of appeal rights.
Further, the officer will describe abatement requirements, including suggested methods of abatement and time periods within which to accomplish abatement of all alleged violations.
The employer should be careful with any comments that might be taken as admissions of violations at issue, though he or she may wish to produce records which show compliance efforts or provide information OSHA can use to determine how much time may be needed to abate an alleged violation.
Admissions of liability may be used against the employer in later enforcement proceedings.
Inspection results
After the compliance officer reports findings, it is the responsibility of the area director to determine if citations will be issued and what penalties, if any, are proposed, as well as the proposed length of time set for their abatement.
Citations
The employer will receive citations and notices of proposed penalties by certified mail. The employer must post a copy of each citation at or near the place of a violation occurred for three days, or until the violation is abated, whichever is longer.
Penalties
In order to determine the amount of penalty, the violation itself will first be categorized. Violations can be classified as Serious, Other-Than-Serious, Willful, Repeat, or Failure-To-Correct. Once a violation is classified, the severity of the violation and the probability of an injury or illness occurring as a result of the violation may be considered in order to determine a "base penalty" amount.
Base penalties may be adjusted when the following factors are considered:
Size-Adjustment Factor: The base penalty may be reduced 60% for employers with on to 25 workers, 40% for employers with 26 to 100 workers, and 20% for employers with 101 to 250 workers. Employers with more than 250 workers will not get a penalty reduction for size.
Good Faith Adjustment: There may be up to an additional 25% reduction for evidence that the employer is making a good faith effort to provide good workplace safety and health. In order to qualify for the full 25% good faith reduction, an employer must have a written and implemented safety and health program such as described in OSHA's voluntary "Safety and Health Management Guidelines," and the program should include programs required under the OSHA standards such as hazard communication, lockout/tagout, or safety and health programs for construction required in 1926.20.
History Adjustment: An additional 10% reduction may be given if the employer has not been cited by OSHA for any serious, willful or repeat violations in the past three years.
The following are definitions of the categories of violations OSHA uses in calculating penalties for violations.
Willful Violation: A violation that the employer knowingly commits, or commits with plain indifference to the law. The employer either knows that what he or she is doing constitutes a violation, or is aware that a hazardous condition existed and made no reasonable effort to eliminate it. The minimum penalty for a willful violation has recently been increased from $5,000 to $25,000, and penalties may reach up to $70,000.
Repeat Violation: A violation of any standard, regulation, rule, or order where, upon re-inspection, a substantially similar violation can bring a fine. To be the basis of a repeat citation, the original citation must be final; a citation under contest may not serve as the basis for a subsequent repeat citation. Repeat violations can reach $70,000.
Failure To Correct Violation: A violation cited based on failure to abate a prior violation. These penalties can reach up to $7,000 each day the violation continues beyond the prescribed abatement date.
Serious Violation: A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A mandatory penalty of up to $7,000 for each serious violation is proposed.
Other Than Serious Violation: A violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm. These violations can reach up to $7,000, but can be reduced by as much as 95% with the adjustments listed above.
Additional Violations: Citations and penalties may be issued for other violations:
Falsifying records, reports, or applications can bring a fine of $10,000, or up to six months in jail, or both
Violations of posting requirements can bring a civil penalty of up to $7,000
Assaulting a compliance officer, or otherwise resisting, opposing, intimidating, or interfering with a compliance officer while he or she is engaged in the performance of his or her duties is a criminal offense, subject to a fine of not more than $5,000 and imprisonment for not more than three years.
Dealing with Inspectors: How To Handle Yourself
Some day you could be surprised by government compliance officers who will arrive without any warning. How you handle yourself at that time could have a serious effect on your company and you. Now is the time to prepare yourself for how to react to that visit
The designated representative
Almost every company has a specific representative designated to meet and accompany any inspector that might come to your facility. If you don't have one, delegate one now! We recommend choosing someone personable and knowledgeable about safety. It is also important that an alternate be picked in case the primary is absent from the facility.
Write down the name and telephone numbers where they can be found at all times. When an inspector arrives, contact your representative immediately. Keeping the compliance officer waiting for long periods of time is not a good way to start off the inspection.
How to answer questions
How you handle yourself and how to answer the investigator's questions can have serious effects, often damaging, to your cause. Be polite and responsive, but do not be overly ready to volunteer unsolicited information.
Investigators are like interviewers. They are trying to get the information they need, and they know that you are unlikely to volunteer anything that would be damaging to your case. As a result, like interviewers, the resort to indirect questions, phrased carefully to make it look like you are being given a chance to exonerate yourself or justify questionable procedures.
General Inspection Guidelines
Dealing with OSHA compliance officers requires balance and common sense. Never lose sight of the fact that they are professionals with the directive of finding any violations of safety laws and guidelines, to protect the health and lives of your co-workers and neighbors. If employers expect to benefit from the labor of others, they have an obligation to look after the well-being of those workers.
Keep the following guidelines in mind:
Never be rude, either deliberately or otherwise
Even when you think that shouldn't have to cooperate, be polite. Personal animosity will only make the situation worse.
Be cautious
Be hesitant about volunteering information. Never grasp at an opportunity to put yourself or your employer in a good light. Why not? Think about it: How often have you listened to people talk themselves out of a job by responding to a carefully crafted question. The same could be true in this case. Count your words carefully.
Plan and prepare ahead of time
The individual who is designated to accompany the compliance officer should be familiar with your safety program. They should preferably be working at the facility most of the time so as to always be available in an inspector walks in unannounced. Have a backup with the same qualifications to cover for possible sickness or vacationing of the primary individual.
Have all files located in one central area
The inspector will watch you closely to determine if you are organized. Timely retrieval of requested documents is extremely important.
Do not make the inspector wait
No one appreciates waiting a long time in an office reception area - this can also be an indication to the inspector that you are not prepared.
Correct deficiencies found during the inspection
If possible, have a supervisor or employee accompany you during the inspection to possibly correct any noted deficiencies. This will show "good faith efforts" to the compliance officer and/or reduce or remove a possible citation.
If in doubt, you can refuse to answer
In most cases, you can ultimately be compelled to respond, but sometimes the matter will not be pursued. If it is, you'll have time in the interim to consult with the learned authorities as to the best approach.
What do OSHA Inspectors Check?
OSHA and EPA compliance officers usually know what they are doing and what to look for. They are not only highly-trained, they also do their homework on your company before they arrive. They will generally have reviewed your accident and medical records on file with the government, as well as any records of the hazardous materials you may use, and previous inspection results, if any.
In addition, compliance officers will look at employer records and reports on work-related deaths, injuries, and illnesses that resulted in medical treatment, work restriction, or transfer.
They will check records of employee exposure to potentially harmful materials, safety training programs, hazardous waste manifests, chemical labels, and posted notices of hazards and safety precautions.
The inspector will check the machines, equipment, and hazardous materials in your workplace to see if they are in compliance with applicable laws. He or she will look at how you handle hazardous wastes and materials, check storage containers to see that they are marked, and that they meet legal standards.
OSHA and EPA compliance officers will observe workers to see that they are following safety procedures, and wearing and using all required protective equipment. The may also ask the workers questions that directly relate to the purpose of the inspection.
The inspector will bring his or her own testing equipment and may take photographs of any relevant equipment or procedures. They may also take samples of air, water, and soil to ensure that hazardous material levels fall within legal limits.
Employees may be asked to wear air sampling pumps, badges, noise dosimeters, or other sampling devices for specific periods of time so that the inspector can measure the levels of harmful substances in the work environment.
Conclusion:
Remember, these are options you can look into:
- Refuse to let the inspector in
- Contest a warrant
- Limit the scope of the inspection to complaint or warrant
- Accompany the inspector
- Have an opening and closing conference
- Contest any fines
DO:
- Designate one person and a backup to be the liaison with the compliance officer; train these people accordingly
- Attempt to correct and deficiencies found during the inspection
- Examine any warrant carefully
- Duplicate the inspector's tests and actions
- Indicate "trade secret" areas
- Prepare, with the help of counsel, a standard operating procedure for handling inspections
- Most Importantly - Implement and update required safety programs and procedures to comply with all OSHA and EPA regulations!
DON'T:
- Demonstrate activities or operations for the instructor
- Volunteer unsolicited information
- Volunteer unrequested documents
- Make any admissions of guilt
For more information, visit OSHA.gov and EPA.gov
Courtesy of American First Aid
Because accidents happen, we deliver convenience, compliance
and peace of mind to your business and your employees. Safety is all we do.
NELCO First Aid, Inc.
20 4th St E, West Fargo, ND 58078
701-280-2092 or nelco@nelcofirstaid.com