Insights from OSHA’s recently released enforcement summary

While many anticipated a relaxing of OSHA’s enforcement actions under the Trump administration, the recently released enforcement summary tells a different story. There were 32,023 federal inspections in FY 2018, a number that has remained relatively stable over the past three fiscal years. The continued aggressive inspection strategies under the Trump administration has confounded many. There’s been a record number of $100,000+ citations, higher penalties, continuing increase in willful and repeat citations, as well as worker safety criminal prosecutions; yet, the number of inspectors has declined raising concerns of safety advocates. Also, the figures are for federal inspections. OSHA only covers about 50% of employers-state plans handle enforcement in the private sector in 22 states. State plans must be as effective as federal OSHA, but some states, such as California, have adopted stricter standards.

The enforcement summary provides valuable insight into what triggers an inspection. Over 56% of the inspections were unprogrammed inspections. These include employee complaints, injuries/fatalities, follow up inspections, and referrals. In FY 2018 (Oct. 1, 2017 – Sept. 30, 2018), OSHA conducted 941 fatality/catastrophe investigations, the highest number of such investigations in more than a decade and a 12.4% increase from 2017.

Employee complaints triggered 41% (7,489) of the unprogrammed inspections and over 23% of all inspections. Under the OSHA Act, every employee has the right to complain to OSHA and request an inspection, if they feel there is a violation of a health and safety standard. OSHA does not have the resources to conduct an inspection for every complaint, but evaluates each complaint to determine how it can be handled best – an off-site investigation or an on-site inspection. For an on-site inspection, at least one of eight criteria must be met.

Referrals prompted 6,463, about 36% of unprogrammed inspections and 20% of all inspections. Theses encompass all subtypes of referrals such as those received from compliance safety and health officers, safety and health agencies, other city/county/state/federal governments, media, and employer-reported.

A programmed inspection occurs when the inspection is scheduled because of OSHA selection criteria, such as emphasis programs or compliance directives. They tend to focus on the industries and operations where known hazards exist (e.g., combustible dusts, chemical processing, ship-breaking, falls in construction are some examples), including those that fall under an OSHA emphasis program, and accounted for 44% of the inspections.

In October, the agency launched a Site-Specific Targeting program using data from 2016 Form 300A to target non-construction workplaces with 20 or more employees. While workplaces with high DART rates and those that did not submit the required data are OSHA’s primary enforcement focus, there is also a random sample of low injury rate establishments on the inspection list for quality control purposes. What’s important to know is that these inspections are comprehensive – they are wall-to-wall.

Employer takeaway: While the data provides clues as to the situations that will trigger an inspection, all employers should recognize an inspection can be random and be prepared. If there’s been a fatality or catastrophic injury at a worksite, a legitimate employee complaint, a referral, or a previous inspection with citation, an inspection is likely.

In addition, those industries subject to local (LEP) or national emphasis programs (NEP) and worksites with high DART rates are more vulnerable. It’s important to know the criteria for LEP’s and NEP’s. If OSHA shows up for an inspection at a workplace under one of these programs when the company doesn’t fit the criteria, the employer has a right to refuse the inspection.

Employers should be cognizant of the high number of inspections prompted by employee complaints. Managers who are dismissive of safety concerns or hostile toward those who raise them expose the company to costly consequences. Those who foster a strong safety culture and encourage feedback are less likely to receive complaints or be cited by OSHA.

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