Surviving the OSHA InspectionNovember 6, 2015 – Articles New Jersey Law Journal
It is always a difficult and stressful time when a workplace accident causes death or serious injury or illness to an employee. Employers faced with such a situation are understandably focused on calming anxious co-workers and providing information to distraught family members. Nonetheless, employers should also be prepared for a visit from the Occupational Safety and Health Administration (OSHA).
OSHA is the federal agency authorized to conduct workplace inspections and investigations to determine whether employers are complying with standards governing health and safety in the workplace. Under Section 5(a)(1) of the Occupational Safety and Health Act, every working man and woman is to be provided with a safe and healthy workplace. So when a workplace accident occurs, chances are that an OSHA inspection will ensue. This article provides some practical steps that employers can undertake to handle such an inspection.
Initial Contact with OSHA
Inspections by OSHA are usually conducted without advance notice. Employer consent or a valid warrant is required for OSHA to enter the worksite. When the OSHA inspector arrives at your establishment, he or she should display official credentials and ask to meet with an appropriate company representative. An employer should always ask to see the inspector's credentials. A single company representative should be assigned to interact with the inspector, oversee the inspection on behalf of the employer, and act as the company spokesperson. The selection of a single company spokesperson will significantly increase the likelihood that the employer will maintain a consistent account of the facts.
When initially confronted with an OSHA inspection, keep in mind that an employer's initial reaction to the OSHA inspector may be critical. Although it is an employer's right to require OSHA to obtain a warrant before inspecting the employer's premises, a decision to do so may prove penny-wise and pound-foolish. Statistics show that those employers who deny inspectors initial access or otherwise contest the government's right to inspect their property are, on average, cited more than those employers who cooperated from the outset of the inspection. Those employers that denied initial access on average have larger proposed fines as compared to cooperating employers. Thus, cooperation with the OSHA inspector in the correct circumstances may help to shorten the inspection and lower initial fines.
The inspection begins with an opening conference. During the conference, an employer should obtain as much information as possible about the inspector's purpose for being there. The inspector should explain the purpose of the visit, the scope of the inspection and the standards that apply. Is the purpose to investigate the circumstances surrounding a recent workplace accident or is it to conduct a wall-to-wall inspection of the workplace? Is the inspection based on an employee complaint or police report, or was the facility selected as part of a programmed or targeted OSHA initiative? Determining the scope of the inspection at the outset is important, as it will help you to determine the length of the inspection, the possible disruptions that may occur, and the time and resources needed to address the inspection.
The company representative should accompany the inspector during the inspection. The route and duration of the inspection will be determined by the inspector. The inspector should minimize work interruptions caused by speaking with employees. During the inspection, the inspector will observe safety and health conditions, consult with employees privately, take photos and instrument readings, examine records, measure noise levels and survey existing engineering controls. The inspection may cover part or all of the establishment, even if the inspection resulted from a specific complaint, injury or fatality. Ideally, the company representative should simultaneously take photos, video or instrument readings of the same areas observed by the inspector. The information may prove helpful if the company decides to later contest any alleged violations.
A Note on Record-keeping
Make sure you accurately maintain any required OSHA documentation. OSHA places special importance on posting and record-keeping requirements. The inspector will examine records of deaths, injuries and illnesses that the employer is required to keep. This includes OSHA Forms 300, 300A and 301, which are used to record work-related injuries and illnesses. The inspector will verify that a copy of the totals on the last page of the OSHA Form 300 has been posted and that the OSHA workplace poster, which explains employee safety and health rights, is conspicuously displayed. Records of employee exposure to toxic substances and harmful physical agents will also be examined for compliance with the record-keeping requirements.
Depending on the industry and existence of certain workplace hazards, the inspector may also ask for a copy of the employer's General Safety and Health Program, Hazardous Communications Program, fall protection policy and lockout/tagout policy. Under certain standards, some employers are required to establish written procedures and policies to address safety concerns unique to their workplace. For example, employers in the health-care industry or in chemical manufacturing will be required to maintain a written program that includes provisions for container labeling, material safety data sheets and an employee training program. The program must also contain a list of the hazardous chemicals in each work area and the means used to inform employees of the hazards associated with these chemicals. The failure to maintain these written policies, or failure of the policy to adequately address potential hazards, could be grounds for OSHA violations.
The Closing Conference
During the course of the inspection, the inspector will point out any unsafe or unhealthy working conditions he or she observes. At the same time, the inspector will discuss possible corrective action to eliminate the condition. Some conditions can be corrected immediately and the inspector will record such corrections when determining the employer's good faith and compliance. Please note, however, that even though the condition may be corrected, the apparent violation may still serve as the basis for a citation and proposed penalty.
At the conclusion of an inspection, the inspector will conduct a closing conference with the employer and, if applicable, the employee representative. The closing conference provides an opportunity for an open discussion concerning potential penalties and corrective action. The inspector will discuss all unsafe or unhealthful conditions observed during the inspection, and indicate any apparent violations for which a citation or proposed penalty may be issued or recommended. OSHA has up to six months following the closing conference to issue citations and penalties.
The citations are intended to inform the employer of standards alleged to have been violated and the proposed length of time for their abatement. The types of violations range from de minimus violations with no monetary penalty, to willful and repeat violations with penalties of up to $70,000 for each violation. Depending on the circumstances, multiple citations can be issued and penalties can be significant. When an employer receives citations, it is important to take them very seriously and act promptly, as an employer who wishes to contest the citations must submit a written notice of contest within 15 working days of receipt of the citation.
An OSHA inspection can be a nerve-racking experience; however, with the proper planning and advice, an employer should be able to properly handle an OSHA inspection and minimize exposure. So when that OSHA inspector knocks on your door or appears in your reception area, don't panic. Take a deep breath. Your preparation, organization and willingness to cooperate will get you through it. •
Reprinted with permission from the September 8, 2015, edition of the New Jersey Law Journal © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877.257.3382 -firstname.lastname@example.org or visit www.almreprints.com.