To survive an OSHA inspection, you need to know what the law does—and doesn't—require you to do. This look at the OSHA inspection process can help you weather the test.
BY MICHAEL MATTIA
Michael Mattia is director of risk management for the Institute of Scrap Recycling Industries (Washington, D.C.).
An inspector from the Occupational Safety and Health Administration (OSHA) walks in your office and says he's there to check out your facility.
Don't panic. While this may sound like a frightening prospect, with a basic understanding of the inspection process and your rights and obligations under the law, you can survive it.
First, some background: The Occupational Safety and Health Act of 1970 (which Congress is now working to expand) empowers OSHA to create and enforce safety and health standards and authorizes the agency to conduct workplace inspections to determine if employers are complying with these standards. Since OSHA couldn't possibly check all workplaces on a regular basis, it uses a three-tiered priority system for scheduling inspections. Its first priority is to inspect workplaces where there is reasonable certainty that a danger exists that could cause death or serious physical harm. (The potential danger may be reported to OSHA by an employee or any other individual who has observed the hazardous condition.) A second-priority inspection is usually a follow-up to a workplace accident that resulted in a fatality or the hospitalization of five or more employees. (Such accidents must be reported to OSHA within 48 hours of occurrence.) The third priority for an inspection is a follow-up to an employee complaint. Inspections can also be regularly scheduled for specific high-hazard industries on the basis of injury rates or previous violations of OSHA regulations.
Working With Inspection Officers
If you are inspected, expect it to be a surprise visit. The 1970 act prohibits OSHA from giving advance notice of an inspection except when there is an imminent danger at the workplace that requires correction as soon as possible, the inspection requires special preparation or must take place after normal business hours, it's necessary to ensure the presence of the employer or particular personnel, or OSHA determines that advance notice would produce a more thorough or effective inspection.
Nevertheless, the law also forbids an OSHA officer from entering any private premises to conduct an inspection unless he first obtains either the employer's consent or a warrant authorizing the inspection. It's important to note that consent to an inspection need not be expressed; the failure to object is enough to constitute consent.
Upon arriving at a facility, the compliance officer will first attempt to locate the owner, operator, or agent in charge—let's assume it's you—to obtain consent for an inspection. If you aren't available, the officer may record that permission for an inspection was denied and may leave to obtain a warrant. If you or one of your employees, however, gives the officer a date and time for when you'll be present, then the officer may decide, after consulting with the OSHA area director, to return without a warrant.
Of course, you could deny the compliance officer entry (assuming there's no warrant), but there are problems with that strategy. While such a refusal buys the employer time to better prepare for an inspection, it also sets up an adversarial relationship with the OSHA officer and requires the employer to remain in a state of preparedness, as the officer has no time limit within which to return to the facility. And, if you deny entry to a compliance officerwith a warrant, you could face civil and/or criminal charges.
Upon entering a workplace, all OSHA officers must present photo-identification credentials. Before consenting to an inspection, you're allowed to photocopy the inspector's credentials, contact the OSHA area office to verify the officer's employment and his assignment to your facility, and ask under which priority the inspection has been scheduled.
The Four Steps Of an Inspection
In general, OSHA inspections are based on four procedures.
Opening conference. During the opening conference, the compliance officer should explain the priority under which your inspection was scheduled and detail the scope of the investigation, which may include employee interviews, a physical plant inspection, and a review of company safety records. The OSHA officer will determine if an employee representative should be present, ask if you have any objections to the taking of photographs or the use of video cameras, and review what safety and health hazards may be encountered during the inspection.
Records review. Under the 1970 act, OSHA compliance officers have the right to review all records related to compliance with OSHA standards. After the opening conference, the officer will ask to see your OSHA 200 log form for the current year, or past several years, and to know the total hours worked for the year or years. This information is used to determine the lost workday injury (LWDI) rate for your operation, which is calculated by multiplying the number of injuries involving lost or restricted workdays by 200,000 and dividing this sum by the total number of employee hours worked. (For a detailed discussion of LWDI, see the Safety Reference Manualpublished by the Institute of Scrap Recycling Industries under the section "OSHA Compliance: Inspections.")
If your LWDI rate is below the national rate for manufacturing facilities, a comprehensive safety inspection may not be conducted. Instead, a partial inspection may be done to investigate, for instance, a reported imminent danger or an observed serious hazard, or to follow up a safety complaint presented by an employee representative during the opening conference.
Irrespective of your LWDI rate, the compliance officer will also review your injury and illness records, hazard communication program, and exposure and medical records required by specific OSHA standards. The officer will check that OSHA citations or petitions related to previous inspections are visible to all employees, and that the log and summary of occupational injuries are posted during February. The inspector may also request to see your company's safety policies and procedures, records of equipment and facility inspections, and safety committee minutes.
While you're obligated by law to turn over this information, you aren't required to—and probably shouldn't—provide copies of these records to OSHA officers, even if requested, since such copies would enable the inspector to further scrutinize the documents off-site. If, for example, the officer had a copy of your safety program, it would be much easier for him to cite you for a violation of a company safety policy, even if there were no violation of a specific OSHA regulation. If copies of your records are truly needed, the inspector can obtain a subpoena for them.
Facility inspection. After reviewing your records, the compliance officer will likely ask to conduct a physical inspection of your facility, which OSHA calls a "walk around." You may offer the officer personal protective equipment that is normally offered to visitors, such as a hard hat and safety glasses, but you should not offer to supply him with protective equipment that is not normally issued to visitors, such as steel-toed shoes, or that requires medical clearance, such as a respirator. Instead, simply note to the inspector that such equipment is needed and let the him provide his own.
During the inspection, the compliance officer will try to become familiar with your plant's operations, collect information on hazards, and observe employees' activities, checking to see if specific OSHA regulations and requirements of your safety program are in practice and enforced. The inspector may ask employees what they know of your firm's safety program and specific safety requirements, as well as the date of the last safety training they received and what they recall of the material presented. In addition, employees wearing special safety equipment, such as respirators, may be asked to demonstrate how to properly fit the equipment or describe the effective use and cleaning of the device.
During the walk around, the compliance officer should at all times be accompanied by a company representative, who should
- respond to the inspector's questions with short, to-the-point answers;
- take notes on where the compliance officer looks, to whom the officer talks, what the officer measures or examines, and what devices the officer uses to take measurements or readings;
- limit the inspector's access to areas of the plant within the parameters agreed to during the opening conference or within the scope of the inspection warrant; and
- prohibit the officer from any areas that are off-limits to employees.
The company representative should not
• provide the compliance officer with copies of forms, policies, documentation, or other written material that pertains to employees, facilities, equipment, and materials (though the officer is permitted by law to review these documents on-site);
- discuss details of how processes or machines operate;
- demonstrate the operation of machinery;
- answer questions concerning areas he is unfamiliar with—these questions should be referred to company officials who know the area in question;
- make nonessential conversation with the compliance officer or make voluntary or off-the-record statements about any area of the workplace; or
- tell the officer of safety and health procedures that are not actually in place.
During the walk around, the inspector will attempt to determine if specific OSHA regulations have been violated or if employees have been exposed to specific hazards that could cause a severe injury or illness. In determining the extent of a violation, the officer will try to decide if you knew or should have known of the existence of the violation or other hazard and discover what measures you've taken to correct the problem. There's always the chance the inspector may need to return to conduct additional monitoring prior to determining if a standard violation or other hazard exists.
Closing conference. To conclude the inspection, the OSHA officer will typically request to meet with an employee representative and you, either separately or jointly, to discuss the findings of the records review and the walk around. Violations found during the walk around will be described, and you may be asked to establish dates by which the hazards will be corrected. And finally, the inspector will advise you of your rights and responsibilities following an inspection, including the guidelines for contesting a citation.
Citations can be a lot broader than for violations of specific OSHA standards. The 1970 act's general duty clause requires that all employers provide their employees with a workplace free from recognized hazards that are likely to cause death or serious physical harm, so OSHA compliance officers can cite employers for any serious workplace hazards that are recognized as hazards (by either the employer or industry) and can be corrected through some feasible and useful method—regardless of whether it actually violates some OSHA standard.
Violations and Penalties
Following the closing conference, the compliance officer will file a report with the OSHA area director, who will determine if citations will be issued and if penalties will be proposed.
Penalties are levied based on the types of violations cited, which the agency breaks down as de minimis, nonserious, serious, willful, repeat, or failure to correct. De minimis violations apply to incidents that have no direct or immediate relationship to safety and health and, therefore, don't merit a penalty. Violations considered nonserious and serious, on the other hand, may be assessed penalties up to $7,000 per violation, and each willful and repeat violation can mean a minimum penalty of $5,000 to a maximum of $70,000, plus fines and/or imprisonment. Failure-to-correct violations can be assessed up to $7,000 per each day the violation continues. In determining the amount of any penalty, the OSHA area director must assess the size of your business, the gravity of the violation, your good-faith actions, and prior record of violations.
If you receive written notice of violations and penalties, you have four options:
Contest the citation. In order to do so, however, you must file a notice of intent within 15 working days of receipt of the citation. The notice should be sent by certified or registered mail to the OSHA area office, and it should identify your company as the employer and specify the violation you're contesting. Since contest proceedings are tried before an administrative law judge, you'd be wise to consult with an attorney who has experience dealing with such proceedings.
Seek an informal settlement. The OSHA area director has the authority to modify or withdraw a penalty or violation, which can be done through an informal conference with the area director. To pursue this approach, you must request and hold an informal conference within the 15-day contest period, but keep in mind that your request for an informal conference does not stop or reset the contest period.
At an informal conference, you can show why the violation or penalty is inappropriate, prove that the violation was corrected during or soon after the inspection, or discuss alternatives for compliance. You can also attempt to have the penalty reduced by showing the existence of an effective safety program and providing evidence that your firm has had few employee injuries or illnesses. In addition, penalties can sometimes be reduced if you have a small work force and discuss this with the area director.
Modify the abatement period. Your third option is to request an extension on your for correcting the violation. This can be done when contesting the citation or in a specific petition for modification of the abatement period, which must be filed by the deadline date of the abatement period set by OSHA. The petition must outline abatement measures already taken, how much additional time is needed and why, and how employees are being protected until the process is completed. In addition, you must post a copy of the petition in a conspicuous place for all employees to read.
Accept the citation. If you don't contest the citation or reach a settlement within the 15-day contest period, the citation becomes final and can't be appealed. Also, the fine set in the citation must be paid, and the violation must be corrected within the time set by OSHA.
Armed with this general knowledge of OSHA inspection procedures, you should be able to prepare your operations should a compliance officer come knocking on your door. Instead of worrying if or when an inspector will stop by, know your rights and obligations and you can be ready, willing, and able to pass the OSHA test.
Where to Get Help
You can obtain free safety and health consultation services from state-run programs funded, in large part, by OSHA. The professional staff of these programs can conduct workplace inspections similar to those conducted by OSHA compliance officers. A confidential report is then sent to you outlining changes that need to be made to conform with OSHA standards and offering recommendations on options for improvements of your facility's safety program. If you use these consulting services and correct all identified hazards, OSHA may give you a certificate of recognition that exempts your workplace for one year from general enforcement inspections.
Following is a list of where to reach state and territorial consultation programs.
Alabama: 205/348-7136
Alaska: 907/264-2599
Arizona: 602/628-5478
Arkansas: 501/682-4522
California: 415/703-4050
Colorado: 303/491-6151
Connecticut: 203/566-4550
Delaware: 302/577-3908
District of Columbia: 202/576-6339
Florida: 904/488-3044
Georgia: 404/894-8274
Guam: 671/646-9244
Hawaii: 808/548-4155
Idaho: 208/385-3283
Illinois: 312/814-2339
Indiana: 317/232-2688
Iowa: 515/281-5352
Kansas: 913/296-4386
Kentucky: 502/564-6895
Louisiana: 504/342-9601
Maine: 207/624-6460
Maryland: 410/333-4210
Massachusetts: 617/727-3463
Michigan: 517/335-8250 (health); 517/322-1809 (safety)
Minnesota: 612/297-2393
Mississippi: 601/987-3981
Missouri: 314/751-3403
Montana: 406/444-6401
Nebraska: 402/471-4717
Nevada: 702/688-1474
New Hampshire: 603/271-2024
New Jersey: 609/292-0404
New Mexico: 505/827-2862
New York: 518/457-2481
North Carolina: 919/733-2360
North Dakota: 701/221-5188
Ohio: 614/644-2631
Oklahoma: 405/528-1500
Oregon: 503/378-3272
Pennsylvania: 412/357-2561
Puerto Rico: 809/754-2171
Rhode Island: 401/277-2438
South Carolina: 803/734-9599
South Dakota: 605/688-4101
Tennessee: 615/741-2793
Texas: 512/440-3834
Utah: 801/530-6855
Vermont: 802/828-2765
Virgin Islands: 809/776-3700
Virginia: 804/786-6613
Washington: 206/995-5441
West Virginia: 304/347-5937
Wisconsin: 608/266-8579 (health); 414/521-5063 (safety)
Wyoming: 307/777-7786