When OSHA comes knocking
Before an inspector starts, youâ€™ll be told the scope of the inspection. It could include interviewing employees, physically inspecting the workplace and reviewing records. The inspector looks to see if your company has a written safety and health program. He or she will want to know about any safety training. This can be answered by having copies of your program, up-to-date OSHA 300 recordkeeping forms of injuries or illnesses, documentation of employee training and any other relevant issues about your safety and health program.
At the start of the inspection, the compliance safety and health officer is required to find the owner representative, operator or agent in charge at the workplace and present credentials. On construction sites this is usually the representative of the general contractor.
If neither the person in charge nor a management official is present, the compliance safety and health officer (CSHO) can contact the employer to request such presence. An inspection cannot be delayed unreasonably. Usually this means not over one hour. If the person in charge at the workplace cannot be determined, the extent of inquiry in the case filed is recorded and the inspection proceeds.
Your best betYour best bet to avoid costly citations is to be prepared and offer the CSHO assistance as soon as possible with the â€œwalk aroundâ€ (the term commonly used for inspections). In fact if you forcibly interfere with the conduct of the inspection, watch out. Your actions can be reported up the chain of command to one of OSHAâ€™s ten regional administrators.
You have the right to deny OSHA admittance to your establishment, but never do it. If you do, expect the wrath to come down on you when the CSHO comes back with a warrant.
Another tip: when responding to an inspectorâ€™s questions, answer directly. Do not add anything to the discussion, not your opinion, or what you did or did not do, what employees think about the issue. Keep quiet and answer the question.
Construction walk aroundsAt construction sites, all the subcontractors assemble and the opening conference is held. A site survey starts where elevated work is observed. Fall protection is immediately checked. Then comprehensive or partial walk arounds are conducted. Every subcontractor working is observed, with employees exposed to apparent hazards questioned.
If violations are observed, the CSHO makes another inspection at that site. If there are ten subcontractors, and they are inspected, the CSHO will have ten inspection reports to write.
Completing the walk around, the CSHO will advise the general contractor representative that there will be a closing conference where all apparent violations will be discussed, or the CSHO may say that the inspection is complete.
Red flagsBe warned, if the CSHO reads you a laundry list of apparent violations at the closing conference, abate all mentioned as quickly as possible. This will be recorded under â€œGood Faithâ€ in the inspectorâ€™s file.
During the closing conference with the owner representative, operator or agent in charge of the workplace and an employee representative, if there is one, the CSHO explains violations observed during the walk around and ways to correct them. The CSHO does not discuss penalties. Only the area director issues citations based on the CSHOâ€™s recommendations. At this point, expect the CSHO to explain the process for appealing violations and a follow-up letter explaining the process in writing.
Immediately following the CSHOâ€™s departure, the safety and health manager should meet with the owner or plant manager, if he/she was not present for the inspection. This is where the cold sweat begins for any employer who has a long list or a short list with serious hazards observed at the job site. On the other hand, this can be a wonderful experience if you have implemented an effective program, and the CSHO records no regulatory or standards violations.
SIDEBAR: Waiting for the shoe to dropItâ€™s not what you wanted to hear: the OSHA compliance officer at the closing conference tells you that you have a number of apparent violations that do not comply with the OSH Act. Now what?
Days pass and you either wait patiently for some communication from OSHA, or you may mentally cast aside the experience of being inspected by your government.
Then, one day, youâ€™re handed a registered mail slip and an envelope arrives from OSHA.
Youâ€™ve just been handed your list of citations and penalties. Welcome to OSHAâ€™s enforcement system.
OSHA has six months from the end of the inspection to serve you the citation. Your rights begin with a 15-day period in which you may meet with the OSHA area director at his office to discuss the citation and penalties.
Youâ€™d be smart to request this conference. Youâ€™ll be given an opportunity to get the details and explanation of why and what caused OSHA to come down on you. Youâ€™ll also have a clearer understanding of what standards mean. Youâ€™ll have an opportunity to attempt a settlement. And you can request an extension in order to abate (correct) violations, and correct them in the proper way to maintain a safe and healthful workplace.
The penalties you receive are based on your history with OSHA, the size of your business, how severe the violations were, and the way you acted during the inspection (your good faith).
In trying to come to terms with OSHA, try to reduce the classification of the violation, which is either Egregious, Willful, Serious or other-than-serious. A Willful violation starts at $70,000, and a serious violation starts at $7,000. These violations can be re-classified to a lesser classification if the OSHA official agrees with you.
Here come the judge
If you canâ€™t reach an agreement, you may within that 15-day period contest the citation, or penalties, or both. Your case is then sent to the Occupational Safety and Health Review Commission, a separate group composed of several hearing judges, and the case is set for a trial.
You might have several possible defenses: Noncompliance was due to employee misconduct, and you trained every employee and communicated the specific information to that employee. Or, you investigated and attempted to correct any potential hazard and you enforced your company policy.
However, you must have clear, concise documentation to prove your case.