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SESSION 9
OSHT 1313/STP 7
OSHA INSPECTION PROCESS
Arrival of the Compliance Officer:
A designated individual from the company should greet the compliance officer and check
the credentials. In rare cases when a search warrant seems necessary or prudent, verify
that the search warrant is valid. If a management representative is not on site, the
inspector is responsible for attempting to contact that person and to request his or her
presence. If a management representative is unavailable within about an hour, the
inspector can begin the inspection without a management representative present.
Opening Discussion or Conference:
This conference is your chance to get more information regarding the inspection. Each
inspector most likely will do things a little differently however the general outline for an
inspection is as follows:
The compliance officer should explain the nature of the visit and the scope of the inspection
along with standards that apply. If your inspection is a result of an employee grievance or
complaint, you have a right to see a copy of the complaint. If this is the case the compliance
officer will most likely not reveal the name of the employee who filed the complaint.
An authorized manager or representative is also given the opportunity to attend the opening
discussion or conference and to accompany the on site compliance officer during his or her
inspection. An employee union or a plant safety committee (in the absence of a union) are
allowed to designate an authorized employee. In a case where neither employee group
exists, the employee representative may be selected by the plant employees or the
compliance officer will decide if any employee effectively represents the interests of the
other employees. The employer will not be allowed to select the employee for the OSHA
walk through.
The S&H Act does not require an employee representative at each inspection. If there is no
authorized employee representative the compliance officer must consult with a reasonable
amount of workers concerning health and safety issues in the workplace. These
consultations may be (and usually are) held privately.
The on site OSHA compliance officer might want to see reports of work-related injuries
and/or accidents recorded in your OSHA log. Be prepared to show the compliance inspector
your HAZCOM, or hazard communication program, LOTO, or lockout/tagout program, a
general safety program and other records relating to the safety of your employees.
Walk Through Inspection:
The compliance officer will decide the route and length of your safety inspection. While
conversing with your employees, the compliance officer should make a genuine effort to
minimize any interruptions with your employees during the walk through. The compliance
officer will closely monitor conditions, speak with workers and take photos for record
purposes. It is highly advised that you bring a camera and notebook along for the walk
through. Be sure to take any pictures of the exact items in which the compliance officer
takes and also make notations of any items that they take as well. If you are not certain of
what the officer is making notes of, you may ask the officer what their notes were about.
The officer may take instrument readings if necessary and examine records.
An OSHA inspection is an evidence gathering process. Prepare to document the entire
inspection.
Closing Conference:
At the closing discussion or conference, the OSHA compliance officer and the employee
representative will discuss all unsafe conditions observed during the inspection with the
employer. The inspector will clearly indicate all violations for which a safety citation can be
issued. At this point in time, the employer is made aware of appeal rights by the OSHA
Inspector. The inspector will not indicate any proposed penalties due to the fact that only
the OSHA area director is empowered to issue these penalties.
As the owner, manager or employer, you should be given a chance to discuss these
violations so that you may present your side of the argument or case. It may be in your
best interest to produce documentation of compliance efforts and provide information that
may help OSHA decide the amount of time may be necessary to abate any alleged
violations.
At the closing discussion or conference, the OSHA compliance officer may decide to hold the
conference with the employees or their representative in order to discuss matters of direct
interest to employees.
Post Inspection:
Make certain that you gather any notations of the opening discussion, walk through, and
closing discussion in a file. Also, include any pictures that were taken as well. Be sure to
follow up with any employees who were interviewed by the OSHA compliance officer. If the
employee has signed a statement, you are entitled to receive a copy of that statement for
your file.
Conclusion:
Above everything, remember that the OSHA compliance officer was at your facility because
there is a question (whether unfounded or not) about the well being and safety of your
employees. The level of cooperation between yourself and the OSHA compliance officer will
result in a safe working environment for your employees. The overall objective is to remedy
any unsafe working conditions with minimal or no penalties/citations issued to your
company.
Your Demeanor:
Obviously, an OSHA compliance inspection can be a very stressful ordeal but, it does not
have to be. As mentioned above, if you are well prepared then your inspection will go off
without a hitch. Follow the simple guidelines below and your inspection should go well. If
you are unprepared, your chance to get your safety systems in place are all behind you and
your best bet is to act in the following manor:
>Be courteous and treat the compliance officer with respect.
>Stay cool, calm and collected.
>Do not act overly anxious, nervous, fidgety, or tense. Officers will pick up quickly on
this and may dig deeper into something based upon your demeanor at the time.
>Overall, simply be cordial. OSHA Inspectors are people too and may respond favorably
or unfavorably based upon your words and actions as anyone else would.
General:
In general you will not receive advance notification of an OSHA inspection. Employers
should always insist upon seeing the OSHA compliance officer’s credentials, who should
readily agree to this request. In extreme cases you may wish to request a search warrant
from the compliance officer before allowing entrance into your facility. By law, OSHA is
required to have a search warrant to enter your premises; however, requiring OSHA to
secure a search warrant could create an adversarial relationship between your company and
OSHA. You may want to request this only in the case where a fatality or serious injury
occurred that can result in criminal actions.
Protecting your rights and maintaining a cordial relationship
with the OSHA inspector.
1. Ask your OSHA compliance officer as to the purpose of his or her visit. Ask
the inspector if this a wall-to-wall inspection or the result of a complaint
against the company? If the inspection is the result of a complaint, the
compliance officer should only inspect the specific machine or process
involved in the complaint.
2. DO NOT at any time leave the OSHA compliance officer alone in your facility.
Remain with the compliance officer during their ENTIRE visit.
3. OSHA compliance officers are allowed to speak in private with your
employees. Allow ample distance between you and the compliance officer so
he/she can speak privately. Any obvious attempt to listen in on conversations
between the OSHA compliance officer and your employee will be of detriment
to the relationship between you and the OSHA compliance officer and may
adversely steer the direction of the inspection in an unfavorable direction. The
last statement is important however, you are advised to stay in sight range of
the compliance officer.
4. If the compliance officer takes still photos of something, this is acceptable but
as a general rule do not allow the compliance officer to take video
footage. If the compliance officer takes a photo of something, you should
take your own photo as well.
5. If the compliance officer requests certain safety program documentation, get
those specific copies for him/her. Do not let the compliance officer
browse through documents at will. Make certain that you keep a file that
contains a copy of all documents provided to the compliance officer during the
course of an inspection.
6. Pay very close attention and listen carefully to any questions asked by the
OSHA compliance officer. Answer honestly, but answer only the questions
asked - do not volunteer additional information. Make notations of
questions that were asked by the OSHA compliance officer and note your
answers as well.
7. At any given time never attempt to assume or guess as to what the OSHA
compliance officer is asking. If you are uncertain of their question then ask for
the officer to clarify. Ascertain that you are 100% clear and understand the
entire question before you give your answer. Pick and choose your words
carefully.
8. If your OSHA compliance officer writes down any notes – inquire as to what
he/she is writing about then record your own notations.
CITATIONS:
Appeals by Employers
When issued a citation or notice of a proposed penalty, an employer may request an informal meeting
with OSHA'S area director to discuss the case. Employee representatives may be invited to attend the
meeting. The area director is authorized to enter into settlement agreements that revise citations and
penalties to avoid prolonged legal disputes.
Petition for Modification of Abatement (PMA)
Upon receiving a citation, the employer must correct the cited hazard by the prescribed date unless he
or she contests the citation or abatement date. Factors beyond the employer's reasonable control may
prevent the completion of corrections by that date. In such a situation, the employer who has made a
good faith effort to comply may file a PMA for an extended date.
The written petition should specify all steps taken to achieve compliance, the additional time needed
to achieve complete compliance, the reasons such as additional time is needed, all temporary steps
being taken to safeguard employees against the cited hazard during the intervening period, that a
copy of the PMA was posted in a conspicuous place at or near each place where a violation occurred,
and that the employee representative (if there is one) received a copy of the petition.
Notice of Contest
If the employer decides to contest either the citation, the time set for abatement, or the proposed
penalty, he or she has 15 working days from the time the citation and proposed penalty are received
in which to notify the OSHA area director in writing. An orally expressed disagreement will not suffice.
This written notification is called a "Notice of Contest".
There is no specific format for the Notice of Contest: however, it must clearly identify the employer's
basis for filing the citation, notice of proposed penalty, abatement period, or notification of failure to
correct violations.
A copy of the Notice of Contest must be given to the employee's authorized representative. If any
affected employees are not represented by a recognized bargaining agent, a copy of the notice must
be posted in a prominent location in the workplace, or else served personally upon each
unrepresented employee.
Review Procedure
If the written Notice of Contest has been filed within the require 15 working days, the OSHA area
director forwards the case to the Occupational Safety and Health Review Commission (OSHRC). The
Commission is an independent agency not associated with OSHA or the Department of Labor. The
Commission assigns the case to an administrative law judge.
The judge may disallow the contest if it is found to be legally invalid, or a hearing may be scheduled
for a public place near the employer's workplace. The employer and the employees have the right to
participate in the hearing; the OSHRC does not require that they be represented by attorneys.
Once the administrative law judge has ruled, any party to the case may request a further review by
OSHRC. Any of the three OSHRC commissioners also may, at his or her motion, bring a case before
the Commission for review. Commission rulings may be appealed to the appropriate U.S. Court of
Appeals.
TYPES OF VIOLATIONS:
1.
"Other than Serious" Violations
According to OSHA, an "other than serious" violation is described as a situation that relates to job
safety and health that would not cause death or serious physical harm. According to safeworkplace.com, an example of this type of violation is when an employer fails to list work-related
injuries and illnesses in an OSHA Form 300 log. The employer may document injuries and illnesses
incorrectly or fail to document them at all. Another example would be a failure to conduct timely
equipment inspections. As of 2010, fines for this type of violation can range from $350 to $7,000 per
violation. The amount that is fined is determined by history of previous violations, the size of the
business and whether the employer has taken steps to comply with OSHA.
2.
Serious Violations
According to OSHA, a "serious" violation is when there is a situation that relates to job safety and
health that has a high probability of causing death or serious physical harm, that the employer knew
or should have known about. According to safe-workplace.com, an example of this type of violation is
when an employer fails to provide protection against falls for surfaces above 6 feet from the ground.
Other examples include slipping and tripping hazards, failure to provide adequate fire and equipment
training, electrical hazards, noise hazards and exposure to hazardous chemicals. The fine for this type
of violation is a mandatory $7,000. The penalty may be reduced based on the size of the business, the
employer's good faith, history of violations and the severity of the situation.
3.
Willful Violations
According to OSHA, a "willful" violation is issued when an employer knowingly does not abide by OSHA
standards and makes no efforts to rectify the situation. Fines of up to $70,000 may be issued, and
there is a minimum $5,000 fine. Fines may be reduced (but to no lower than $5,000) depending on
the size of the business and history of previous violations. If the result of the willful violation resulted
in death, the court may add fines of up to $250,000 to $500,000 and issue prison sentences of up to
6 months.
4.
Repeated Violations
According to OSHA, a "repeated" violation is when employers are repeatedly cited for the same OSHA
violation. An employer is labeled a repeat offender after the original violation is final and the employer
is fined for the same violation more than once. This type of violation is for employers who do not fix
previous violations. A fine of up to $70,000 is imposed for this violation.
5.
Failure to Abate Prior Violation
According to OSHA, a "failure to abate prior violation" is issued when an employer fails to correct a
prior violation. The employer will be fined $7,000 each day the violation continues past the abatement
date.
6.
De Minimis Violation
According to OSHA, a "de minimis" violation is issued when there is a situation that has no
relationship to safety or health. When there is a "de minimis" situation, it is documented in the same
way as a normal violation, but not included on the citation. According to OSHA, an example of this
type of violation is an employer failing to post a citation within 3 days of receiving it.
7.
Additional Violations
According to OSHA, there are a few additional violations as well. Falsifying records, noncompliance
with posting requirements and assaulting, resisting, opposing, intimidating or interfering with a
compliance officer are all additional violations subject to up to $5,000 and imprisonment for up to 3
years.