Safety & Health

OSHA INSPECTIONS AND ADMINISTRATIVE PROCEDURES

I. OVERVIEW.

II. OSHA INSPECTIONS.

A. What To Do Before OSHA Arrives.

1. Preventative Measures to Decrease the Risk of Citation. It is imperative for all employers to make safety a priority before there is in accident or an inspection. Taking preventative measures and ensuring compliance and implementing the proper training, safety and engineering controls, written programs and testing will reduce workplace hazards, lost work days, workers’ compensation costs and minimize or eliminate OSHA penalties if an OSHA inspection should be conducted. The following are some basic steps to consider before OSHA arrives.

(a) Develop, Maintain and Retain Proper Documentation. There are certain recordkeeping exemptions. Hence, consult with OSHA or your OSHA attorney to see if you are exempt.

(1) 200 Logs.

• Maintenance
• Retention
• Posting

(2) 101 Logs/Injury Report Forms

(3) Written Programs. OSHA requires employers to create and maintain a number of written programs. Employers must continually evaluate their workplaces to determine whether and which written plans they must have and whether their written plans are still compliant.

• Hazard Communications. A recent OSHA survey of citations and penalties showed that violation of the Hazard Communication Standard was the most common and accounted for the greatest damage awards.
• Lock-Out/Tag-Out
• Bloodborne Pathogens
• Respirator Program
• Confined Space
• Ergonomics

(b) Develop A Safety Committee. Consider developing a safety committee, but be aware of the pros and cons. For instance, most insurance companies offer a decreased insurance premium to companies which have a working safety committee. However, safety committees can lead to Elecromation issues and can also produce reports which can later be used by OSHA to prove that an employer’s action or inaction was willful.

(c) Determine if Information is Classified And/Or Trade Secret.

(1) Disclosure of Records. The disclosure of inspection records is governed by the Department's regulations at 29 CFR part 70, implementing the Freedom of Information Act (FOIA).

(2) Classified and Trade Secret Information. Any classified or trade secret information and/or personal knowledge of such information by OSHA personnel shall be handled in accordance with the regulations of OSHA or of the responsible agency. The collection of such information, and the number of personnel with access to it shall be limited to the minimum necessary for the conduct of compliance activities.

2. Anticipate Inspection.

(a) Warrant Strategy. Analyze and determine whether or not you are going to require an OSHA inspector to produce a warrant prior to inspection. Unless the circumstances constitute a recognized exception to the warrant requirement (i.e., consent, third party consent, plain view, open field, or exigent circumstances) an employer has a right to require that OSHA seek an inspection warrant prior to entering an establishment and may refuse entry without such a warrant. If an employer refuses to allow an inspection of the establishment to proceed, OSHA must leave the premises and immediately report the refusal to the Assistant Area Director. The Area Director will then notify the Regional Solicitor and generally, a warrant will be obtained.

(1) If the employer raises no objection to the inspection of certain portions of the workplace but objects to inspection of other portions, OSHA will document the objection. Normally, OSHA will continue the inspection, confining it only to those certain portions to which the employer has raised no objections.

(2) In either case OSHA will advise the employer that the refusal will be reported to the Assistant Area Director and that the agency may take further action, which may include obtaining legal process.

(3) On multiemployer worksites, valid consent can be granted by the owner, or another co-occupier of the space, for site entry. Therefore, if you work at a multi-employer site, be sure to discuss potential OSHA inspections with the other employees so that you call the shots and retain control of any inspection.

(b) Appoint an OSHA Coordinator. The Coordinator would be responsible for reviewing written programs, training, documentation and other OSHA related issues. In addition, the Coordinator would also be in charge the moment OSHA knocks on the company’s door.

(c) Hire counsel. In most cases, it is imperative to hire an attorney who specializes in OSHA work. The attorney will help with OSHA compliance issues prior to inspections, and if necessary, defend citations and penalties issued by OSHA.

3. Understanding Civil and Criminal Liability.

(a) Criminal Liability. Certain violations of the OSHA Act constitute criminal violations for which prison terms may be imposed in addition to civil liability. OSHA does not pursue the criminal cases. Instead, such cases are referred by OSHA to the Department of Justice for trial in a federal court.

(b) Civil Liability. In most cases, OSHA violations lead to civil liability. Following an inspection, citations, penalties and abatement dates will be issued.

(c) The OSHA Field Operations Manual ("FOM") describes the types of violation for which it can cite as:

(1) De Minimis Violations. De Minimis violations are violations of standards which have no direct or immediate relationship to safety or health and shall not be included in citations.

(2) Other-Than-Serious Violations. According to the FOM, this type of violation is cited in situations where the most serious injury or illness that would be likely to result from a hazardous condition cannot reasonably be predicted to cause death or serious physical harm to exposed employees, but does have a direct and immediate relationship to their safety and health.

(3) Serious Violations. Section 17(k) of OSHA provides". . . a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."

(4) OSHA’s FOM states that four elements will be considered to determine if a violation is serious. According to the FOM:

• Step 1. The types of accident or health hazard exposure which the violated standard or the general duty clause is designed to prevent.
• Step 2. The most serious injury or illness which could reasonably be expected to result from the type of accident or health hazard exposure identified in Step 1.
• Step 3. Whether the results of the injury or illness identified in Step 2 could include death or serious physical harm.

• Step 4. Whether the employer knew, or with the exercise of reasonable diligence, could have known of the presence of the hazardous condition.

(5) Criminal/Willful Violations. Section 17(e) of the Act provides that: "Any employer who willfully violates any standard, rule or order promulgated pursuant to Section 6 of this Act, or of any regulations prescribed pursuant to this Act, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $70,000 or by imprisonment for not more than six months, or by both.

(6) Repeated Violations. An employer may be cited for a repeated violation if that employer has been cited previously for a substantially similar condition and the citation has become a final order. The violation need not be of the exact standard. In some circumstances, similar conditions can be demonstrated when different standards are violated. Hence, the hazardous conditions found could be substantially similar and therefore, a repeated violation would be appropriate. Although there are no statutory limitations upon the length of time that a citation may serve as a basis for a repeated violation, generally three years is used.

(7) Combining and Grouping of Violations. The FOM allows OSHA investigators to group certain violations. More specifically, violations of a single standard having the same classification found during the inspection of an establishment or worksite generally shall be combined into one alleged citation item. Different options of the same standard shall normally also be combined. Each instance of the violation shall be separately set out within that item of the citation. Other-than-serious violations of a standard may be combined with serious violations of the same standard when appropriate. When a source of a hazard is identified which involves interrelated violations of different standards, the violations may be grouped into a single item.

B. How To Survive An OSHA Inspection.

1. Response Upon Arrival Of OSHA Compliance Officer.

(a) Consult your Inspection Procedure.

(b) Do not allow OSHA into your facility until your OSHA Coordinator is contacted. (c) Call legal counsel.

(d) Determine whether your wish to request an inspection warrant.

(e) If you decide to allow the inspector in without a warrant, meet with him in a private area of your facility, hopefully, close to the entrance.

(f) Ask the inspector about the purpose of the inspection.

(g) Limit the inspection to the Inspector’s stated purpose. Inspectors always like to have your consent to conduct a wall-to-wall inspection. However, you should make great efforts to attempt to contain the OSHA inspector to a limited-area inspection.

(h) Request a copy of the Complaint in all complaint-based inspections.

(i) Know what documents OSHA has a right to review and copy.

(j) Decide the best route to the inspection area. Realize that in walking the inspector to the area of your facility to be inspected, the investigator has a right to review and issue citations for any violation(s) in plain view which he or she may notice on route to the actual inspection area.

(k) Opening Conference. OSHA attempts to inform all effected employers of the purpose of the inspection, provides a copy of the complaint if applicable, and includes employees in the conference unless the employer objects. OSHA shall conduct a joint opening conference with employer and employee representatives unless either party objects. If there is objection to a joint conference, OSHA must conduct separate conferences with employer and employee representatives. During the opening conference, OSHA outlines in general terms the scope of the inspection, including private employee interviews, physical inspection of the workplace and records, possible referrals, discrimination complaints, and the closing conference(s). During the opening conference, OSHA determines whether the employees of any other employers are working at the establishment and affected by the inspection, and the scope may be expanded to include others or a referral made at the discretion of OSHA.

(l) Consider holding small group meetings with employees to alert them to the fact that OSHA is conducting an investigation and that an inspector will be walking around the facility, possibly taking pictures or completing certain tests and even conduct employee interviews. You may wish to inform your employees that while they have a right to speak with OSHA, they are not required to participate.

(m) No admission policy. Be cautious not to make any admissions, unless absolutely necessary, which could be used against you or the company at a later time.

(n) Find out if testing (air sampling, sound tests, etc.) will be conducted. If so, consider whether you want to hire someone to conduct similar tests.

(o) Find out if investigator will be taking a video and/or still pictures. If so, you should do the same.

(p) Record the entire inspection process. Establish a record of the inspection process. The OSHA Coordinator should take detailed notes of all that is said and done, including statements and observations by the OSHA inspector and employee representative. The inspector can photograph conditions that would warrant a citation. Make your own measurements, samples, or observations of any conditions that the inspector measures, samples or observes. Photograph and videotape anything the inspector photographs or videotapes. If the inspector engages in any questionable conduct, you may wish to videotape the inspector. If the inspector mentions possible violations, consider having someone remedy the violation as soon as possible. While all discussions will not result in citation, fixing citations immediately will show your good faith.

(q) Attend closing conference. Meet with the inspector and if he or she raises potential violations which you believe are inaccurate, it is the best time to discuss your opinion and provide a defense.

2. What The Employer Can and Should Do During An Inspection.

(a) The OSHA Inspection Priority. OSHA has specific guidelines which govern how employees are selected for inspection/investigation. The priority for OSHA’s inspections/investigations are as follows:

(1) Unprogrammed Imminent Danger. Imminent danger investigations address any condition or practice in a place of employment which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of the danger can be eliminated through the OSH Act’s enforcement procedures.

(2) Fatality and Catastrophe. Fatality and catastrophe investigations are conducted by OSHA in response to:

• one or more employee fatalities resulting from a work-related incident or exposure, or
• the hospitalization of three or more employees resulting from a work-related incident.
• Employers must report to OSHA, within 24 hours, employee fatalities or the hospitalization of three or more employees resulting from a work-related incident.

(3) Complaints/Referrals. OSHA inspections are often conducted in response to written complaints filed by employees or their representatives. Inspections may be requested if the employee believes that a violation of a safety or health standard, or an imminent danger, exists in the workplace. OSHA also may consider "nonformal" complaints, such a oral complaints and unsigned written complains filed by employees, and complaints submitted by nonemployees.

(4) Follow-up and monitoring inspections. OSHA, on occasion, and generally as a result of a fatality/catastrophe or a settlement agreement, will conduct a follow-up inspection or an inspection to monitor.

(5) Programmed Inspections. Programmed inspections of work sites are those which are scheduled on the basis of objective or neutral selection criteria. The work sites are selected according to national scheduling plans for safety and for health or special emphasis programs. The number of this type of inspection fluctuates depending on OSHA’s research. Since OSHA’s efforts for voluntary compliance have been squelched, OSHA has stated that it will increase the number of programmed inspections. However, due to limited staffing, and the number of complaint based inspections, programmed inspections, in most industries, are rare.

(6) Programmed Related. Inspections of employers at multiemployer worksites whose activities were not included in the programmed assignment, such as a low injury rate employer at a worksite where programmed inspections are being conducted for all high injury rate employers. All high hazard employers at the worksite are normally included in the programmed inspections.

(7) Order of Priority.

Priority: Category

First: Imminent Danger

Second: Fatality/Catastrophe Investigations

Third: Complaints/Referrals Investigation

Fourth: Programmed Inspections

(8) Employer Contacts. Contacts for information initiated by employers or their representatives shall not trigger an inspection, nor shall such employer inquiries protect them against regular inspections conducted pursuant to guidelines established by the agency. Further, if an employer or its representative indicates that an imminent danger exists or that a fatality or catastrophe has occurred, the Area Director shall act in accordance with established inspection priority procedures.

(b) What Compliance Officers Look For.

(1) Relevant employer records. The employer must provide the compliance officer with access to the OSHA 200 Log and Summary of Occupational Injuries and Illnesses (OSHA No. 200 Form) and the Supplementary Record of Injuries and Illnesses (OSHA No. 101 form). OSHA reviews such records to determine compliance and injury and illness trends. OSHA may also use the Log to calculate lost workday injury rates.

(2) Voluntarily supplied employer records. Once a comprehensive OSHA inspection is underway, the compliance officer may consider records that the employer provides voluntarily, such as correspondence about information relevant to the setting of a reasonable abatement date and minutes of safety committee meetings.

(3) Posting. OSHA will also determine if posting requirements in accordance with 20 CFR parts 1903 and 1904 are met.

(4) Employee Interviews. OSHA compliance officer are permitted under the OSH Act to interview employees privately during the course of an inspection, in order to allow such employees to report violations they believe exist at the workplace. Interviewed employees are allowed to have a legal representative present during the interview, but employers and their representatives are not permitted to be present. Employers shall be informed that the interview is to be in private. Whenever an employee expresses a preference that an employee representative be present for the interview, OSHA will make a reasonable effort to honor that request. However, if the employer can prove that its exclusion from the interview process would cause it "actual or threatened injury," then it may, in certain cases, be present at the employee interview. Interview statements of employees or other individuals shall be obtained whenever OSHA determines that such statements would be useful in documenting adequately an apparent violation.

(5) Walkaround Inspection. The main purpose of the walkaround inspection is to identify potential safety and/or health hazards in the workplace. OSHA is required to conduct the inspection in such a manner as to eliminate unnecessary personal exposure to hazards and to minimize unavoidable personal exposure to the extent possible.

(6) Collecting Samples.

• OSHA generally determines as soon as possible after the start of the inspection, whether sampling, such as but not limited to air sampling and surface sampling, is required by utilizing the information collected during the walkaround and from the pre-inspection review.
• If either the employer or the employee representative requests sampling results, summaries of the results shall be provided to the requesting representative as soon as practicable.

(7) Taking Photographs and/or Videotapes. Photographs and/or videotapes shall be taken whenever OSHA judges there is a need.

(8) Violations of Health and Safety Standard.

(9) Employer Good Faith.

(10) Training Programs.

(11) Employee Compliance.

(12) Cleanliness and efficiency of operations.

(c) How To Answer Questions.

(1) Do not make admissions.

(2) Limit Documentation.

(3) Do not provide results of insurance audits or audits by other professionals.

(4) Be courteous and helpful, without providing unrequested information.

3. What Should Be Done After The Inspection.

(a) Abatement.

(b) Attend closing conference. At the conclusion of an inspection, OSHA will conduct a closing conference with the employer and the employee representatives, jointly or separately, as circumstances dictate. The closing conference may be conducted on site or by telephone. An on site conference is very beneficial and should be arranged if at all possible. OSHA will describe the apparent violations found during the inspection, as well as discuss other related issues. Both the employer and the employee representatives shall be advised of their rights to participate in any subsequent conferences, meetings or discussions, and their contest rights.

(c) Set a date for an informal conference.

(d) Determine if you will contest citations.

(e) Determine if you have any affirmative defenses.

(1) Unpreventable Employee Misconduct or Isolated Event.

• To establish the defense, you must show that the violation was unknown to the employer and in violation of an adequate work rule which was effectively communicated and uniformly enforced.

(2) Impossibility.

• To establish the defense, you must show that compliance with the requirements of a standard is functionally impossible or would prevent performances of required work and there are no alternative means of employee protection.

(3) Greater Hazard.

• To establish the defense, you must show compliance with a standard would result in greater hazards to employees than noncompliance, there are no alternative means of employee protection, and an application of a variance would be inappropriate.

(f) Attempt settlement.

III. OSHA ADMINISTRATIVE PROCEDURES.

A. Contesting Citations.

An employer or employee that wishes to contest OSHA citation(s) and/or proposed penalty assessment(s) has 15 working days from receipt of the citation/penalty notice within which to file a notice of contest. If the citations and penalties are not contested during the 15-day period, the citation and penalty assessment is deemed a final order of the Commission "not subject to review by any court or agency". If the employer does not abate a hazardous condition within the time specified in the citation, it will receive a notification of failure to abate and may be subject to additional penalties.

An employer cited under the Occupational Safety and Health Act has the right to appear before the Review Commission to contest a citation, proposed penalty, or notification of failure to abate a previous violation. Employees and their representatives may contest only the reasonableness of the abatement period fixed incitations, although they may elect party status in employer-initiated contests.

When filed, the employer’s notice of contest is sent to the OSHA Area Director who issued the citation. The employer must notify affected employees and inform them of their right to participate as parties in the contest process.

Often times, a settlement can be negotiated after a notice of contest has been filed, but before the contest activities (depositions, interrogatories, etc.) begin.

B. Informal Administrative Review.

C. Settlement Issues.

1. Informal. Pre-contest settlements may be reached either during, or immediately following the informal conference. If a settlement is reached, an informal settlement agreement will be prepared and executed. All employers who receive citations should schedule an informal conference and attempt settlement. Penalties are usually reduced, and depending on the facts of the case, it is possible to reach a settlement under which citations are eliminated (dropped) or at least reduced in seriousness.

2. Formal. Formal settlement agreements are reached between the Secretary of Labor and a cited employer following the employer’s filing of a notice of contest, but generally before the Secretary’s complaint is filed with the Review Commission. Unlike "informal" settlement agreements which generally occur during an informal post-inspection conference, formal settlements require Commission approval.

3. Settlement is permitted and encouraged by the Commission at any stage in the proceedings.

4. Unless the settlement agreement states otherwise, the withdrawal of a notice of contest, citation, notification of a proposed penalty, or petition for modification of abatement period will be "with prejudice".

5. Once the Secretary and the employer have entered into a settlement agreement, the agreement must be submitted to an OSHRC Judge or the Executive Secretary of the Commission.

D. Formal Hearing and Occupational Safety and Health Review Commission.

Initial challenges to OSHA citations, proposed penalties, and abatement measures are heard by OSHRC Judges. A notice of the time, place and nature of the first hearing before an OSHRC Judge is usually given to the parties and interveners at least 30 days in advance of the hearing, unless the parties agree otherwise or in the case of an expedited proceeding. Employees must also be notified of the hearing. (There is a less complicated method to challenge OSHA citations, penalties and/or abatement dates, which the parties may elect. The proceeding eliminates pleadings and discovery.)

OSHRC Judges have extensive authority over the conduct of hearings. The parties are entitled to file a brief and proposed findings of fact and conclusions of law with the Judge.

Following the completion of the hearing, the OSHRC Judge prepares a written decision.

The Occupational Safety and Health Review Commission and its Judges are authorized by the OSH Act to assess civil penalties against employers for violations of OSHA standards and regulations. In such instances, the Secretary’s earlier accessed proposed penalties become merely advisory.

If review by the Commissioners is not directed or granted, the Judge’s decision automatically becomes the final order of the Commission 30 days after the date it was filed. The final order may be appealed in the appropriate U.S. Courts of Appeals, if a petition for review as been filed with the Review Commission and denied.

E. Appeals in Federal Court.

An adversely affected employer, employee, employee representative or the Secretary of Labor may seek judicial review of OSHRC decisions in the U.S. Court of Appeals for the circuit in which the violation occurred, or in which the employer has its principal office. An employer or an employee has the option of seeking review in the Court of Appeals for the District Court of Columbia Circuit.

After an employer exhausts all administrative remedies, review may be sought from an order of the Review Commission that affirms, modifies or vacates the Secretary’s citation or proposed penalty, or that directs other appropriate relief.

Upon the filing of the record on appeal, the federal court of appeals has exclusive jurisdiction of the proceeding and of all questions to be determined. The findings of fact of the Review Commission, if supported by substantial evidence, are considered conclusive and will not be disturbed by the courts. The court may grant temporary relief and restraining orders during the pendency of the appeal.

The party seeking appeal has 60 days from the date of issuance of the Review Commission order within which to file a petition for review with the appropriate court. The 60 day period begins when the Commissioners issue a decision.

When served with a copy of the petition, the Review Commission is required to file the record of the proceedings from which the appeal is taken within 40 days after the filing of the petition. In lieu of the entire record, designated parts of the record needed for the appeal may be filed upon agreement of the parties.

A party may apply to the court for the reopening of the hearing before the Commission upon a showing that additional evidence is material to a resolution of the issues on appeal and that there are reasonable grounds to excuse the failure to obtain such evidence at the original hearing.

This Article should not be construed as legal advice or as pertaining to specific factual situations.