OSHA can come knocking at your door at any moment, and in most cases there will be no advance notice. In fact, anyone who alerts an employer in advance of an OSHA inspection can receive a criminal fine or a jail term or both. Therefore, employers always have to be ready.
While OSHA does conduct random inspections, it’s helpful to know what can trigger an inspection. Generally, OSHA inspections are characterized as programmed or unprogrammed. Programmed inspections typically target specific high-hazard industries or occupations and companies within these industries are selected based upon neutral and objective criteria. Unprogrammed inspections usually are triggered by employee complaints of alleged violations, a fatality or hospitalization of employees, or a referral, including media reports. OSHA may also conduct an unprogrammed follow-up investigation to determine whether previously cited violations have been corrected. OSHA has six inspection priorities:
- Imminent danger: Any conditions or practices that could reasonably be expected to cause death or serious physical harm to employees immediately. An example is a roof that is about to collapse may be considered an “imminent danger.” This inspection usually takes place the same day and no more than 24 hours after the notification. In most cases, the compliance safety and health officer (CSHO) will ask the employer to abate the condition and remove endangered employees from exposure to the danger. If the employer fails to do so, OSHA’s regional solicitor may apply to the appropriate United States District Court for an injunction prohibiting further work until the condition is abated.
- Fatalities, amputations and catastrophes: This priority takes on new meaning this year as the reporting requirements changed January 1, 2015. While the new rule retained the requirement to report all fatalities to OSHA within eight hours, it amended the regulation to require employers to report all work-related in-patient hospitalizations, as well as amputations and losses of an eye, to OSHA within 24 hours (previously, the threshold was three or more employees). Since the Jan. 1, 2015 effective date, OSHA has received 5,474 injury reports, 40 percent of which have resulted in workplace inspections conducted by the agency. For another 46 percent, OSHA has asked the employer to conduct its own “rapid response investigation,” which is an inquiry into how the accident happened and a determination of what measures can be taken to prevent more incidents. OSHA has then contacted the employer within a week by phone or e-mail to learn more about the incident.
If you filed a report, prepare for an inspection. Review the documentation surrounding the incident, inform employees of their rights and what to expect if interviewed, determine the least revealing route to the area of the incident, and volunteer no ancillary information. Incident reports should be limited to the facts and should not contain any speculative theories or guesses as to why an accident occurred. Now more than ever, it is vital for employers to understand how to conduct an effective root cause analysis and produce an effective investigation report. Employers, take note that OSHA will be on the lookout for employer investigation conclusions that “victim-blame” the worker for a workplace injury. Avoid such statements as “The reason we had that injury is the worker stuck his hand in the machine.”
It’s important for employers to realize that such a non-programmed inspection may (but not necessarily) be limited to the scope of the incident. The inspector will probably focus on a piece of equipment or a particular site, where an incident occurred. If, when the inspector explains the reason and scope of the inspection in the opening conference, the inspection seems broader than it should be, raise question and come to an agreement before the inspection begins. Remember,once on site the inspector is free to investigate anything that he or she sees or that you discuss.
Expect the inspector to interview any injured employees and witnesses, as well as supervisors. Although the employer has no right to be present when employees are interviewed, the employer has the right to be present, and should always exercise that right, when management-level personnel are interviewed.
- Complaints: Third priority goes to formal employee complaints of unsafe or unhealthful working conditions. OSHA evaluates each complaint to determine how it can be handled best – an off-site investigation or an on-site inspection. Workers who would like an on-site inspection must submit a written request. At least one of eight criteria must be met for OSHA to conduct an on-site inspection.While an employee has the right to file a complaint confidentially, the employer has a right to see a copy of the complaint with the complainant’s identification removed. If this is not offered at the Opening Conference, the employer should insist on it.
Similar to the incident inspection described above, this is considered a non-programmed inspection and the employer has the right to negotiate the scope of the inspection. For example, if the complaint is about a machine-guarding hazard in the print shop, the employer should insist that the inspection be limited to only the location and hazard identified in the complaint. Eric Conn, Chair of OSHA Workplace Practice Group, Conn Maciel Carey, suggests to minimize the risk of the CSHO expanding the scope of the inspection based on observing hazards in plain view in other locations, the employer’s representative should follow a route to the complaint location through the least sensitive areas of the facility, even if that means walking the CSHO around the outside of the building to a different entrance closer to the location of the complaint.
- Referral: An allegation of a potential workplace hazard or violation reported by another OSHA inspector, government agency, emergency responder, individual, business, or media. Similar to an investigation triggered by an employee complaint, an employer has the right to see a copy of the referral complaint prior to proceeding with the inspection and to negotiate limiting the scope of the investigation to the issues identified in the complaint.
- Follow up inspection. A procedure to determine if an employer has corrected a previously cited violation. While it is clear that if an employer accepted the citation, a follow up inspection should be anticipated, it’s important to consider how to handle a citation at the time it is issued, as it has important implications for future actions. Even though it may be a minor violation and the inclination is to accept it, the penalty may not be the most important consideration. There are other long-term implications that should be considered. Does the abatement put you at a competitive disadvantage? Does it expose you to future repeat violations, with much higher fines? How does it impact sister facilities? Contesting the violation and negotiating a formal settlement may be the best option.
- Planned or programmed inspection. An inspection aimed at a specific high hazard industry or workplace. Employers in these industries are randomly targeted for inspections as part of a “neutral inspection program.” A programmed inspection conveys the right to a “wall-to-wall” inspection, with a much broader scope than non-programmed inspections. It behooves employers to become familiar with OSHA’s Site Specific Targeting Program (changes annually) that directs enforcement resources to workplaces where the highest rates of injuries and illnesses occur as well as National Emphasis Programs and Local Emphasis Programs.
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