Surviving an OSHA Inspection

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OSHA Now and In The Future
Surviving an OSHA Inspection
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Occupational Safety Health ActEnacted 4/29/71

• Reasons for OSH Act
• Failure of existing programs
• State programs limited
• Federal programs partial
• Injuries illnesses increasing

• Prior to OSH Act
• State factory laws
• Federal legislation
• Walsh-Heatly
• Construction Safety Act
• Workers Comp
• Voluntary employer programs

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Purpose of the OSH Act

• .. to assure every working man and woman in
  the nation safe and healthful working conditions
  and to preserve our human resources..

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Democratic OSHA Reform

• The May 12, 2008 Issue of Inside OSHA reports
  that much-needed OSHA reform may soon be on its
  way if Senator Kennedy has anything to say about
  it
• Senate labor committee Chair Edward Kennedy
  (D-MA) plans to push separate sections of his
  OSHA reform bill this year if he cannot get the
  entire bill passed, a source close to the issue
  told Inside OSHA.

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• During an April 29 hearing on OSHAs outdated
  penalty structure, Kennedy heard suggestions from
  AFL-CIO, a former employee of the Department of
  Justice, and a victims representative group on
  how to strengthen the enforcement provisions in
  his bill, The Protecting Americas Workers Act
  (PAW Act) . . . .

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The possible Future!

• S. 1244, The Protecting America's Workers Act
• This legislation is supposed to "reform" OSHA
  by increasing civil and criminal penalties for
  certain OSHA violations. In reality, this
  legislation would revert back to the failed OSHA
  policies of the 1970s.

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• The bill arbitrarily increases civil penalties
  and imposes new criminal penalties which could
  land an employer in jail if a serious accident or
  death occurs. Minimum penalties of 50,000 per
  violation for fatalities or serious injuries,
  with maximum penalties up to 250,000

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• Even if an employer was to do everything possible
  to prevent a workplace accident, s/he could still
  end up in jail.
• The new, untested definitions in this bill are
  vague and ambiguous.
• The bill makes it more likely that small
  businesses will have to hire an attorney to deal
  with the expanded OSHA enforcement actions.
• The government attempts to create new criminal
  penalties that would seek to punish employers
  rather than assist them to create safer
  workplaces.

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• This bill makes employers subject to more
  workplace inspections.
• It gives employees expanded powers to call in an
  OSHA inspector.
• Unions could use these unsubstantiated complaints
  as a reason to organize a non-union small
  business.
• In addition to employees, non-employees and
  competitors are given an unfair opportunity to
  issue complaints with OSHA.

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• This bill requires employers to pay for an
  employee's personal protective equipment. (this
  has already been accomplished by an update to the
  OSHA PPE standard in 2008)

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• This bill expands OSHA and gives them the ability
  to investigate claims instead of the Justice
  Department.
• The bill requires OSHA to investigate all safety
  complaints, even those from non-employees.
• This bill expands OSHA's coverage to some federal
  and state employees.
• By expanding OSHA, it simultaneously opens the
  door to organized labor and gives unions one more
  step in their efforts to organize small
  businesses.

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The General Duty Clause

• OSH Act Public Law 91-596 Dec. 29, 1970
• Section 5 (a) (1)
• Each employer shall furnish to each of his
  employees employment and a place of employment
  which are free from recognized hazards that are
  causing or are likely to cause, death or serious
  physical harm to employees

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Definitions

• Qualified Person
• One who, by having a recognized degree,
  certificate, or professional standing or who by
  extensive knowledge, training, experience, has
  successfully demonstrated his ability to solve or
  resolve problems relating to the work

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Definitions

• Competent Person
• One who is capable of identifying existing and
  predictable hazards in the surroundings or
  working conditions which are unsanitary,
  hazardous, or dangerous to employees, and who has
  authority to take prompt corrective measures to
  eliminate them.

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Competent Person Requirementsin 1926 Standards

• Fall Protection
• Scaffolding
• Trench Excavation
• Respirator Use
• Cranes Derricks
• Asbestos
• Ladders
• Hearing Protection
• Welding Cutting
• Accident Prevention

• Slings Rigging
• Electrical
• Personnel Hoists
• Concrete forms Shoring
• Demolition Preparation
• Compressed Air Use
• Underground Const.
• Lead
• Ionizing Radiation

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Types of Compliance Inspections

• General Scheduled (Random)
• Programmed (high hazard industry)
• Complaint
• Post-Incident(1 fatality or 3 injuries from 1
  event )
• Referral
• Special Emphasis
• Focused (looks at 4 main hazards)
• Follow-up (post citation)

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Inspection Priorities

• Imminent Danger
• Fatal Accidents Catastrophes
• Complaints
• General Scheduled Inspections (Random)
• Programmed Inspections (High Hzd Industy)
• Follow-Up Inspections

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Focused Inspections

• Program Overview Allows compliance officers to
  spend less time on the sites of good contractors
  and more time on the sites of not-so-good
  contractors
• You must have a written safety program
  implemented by a competent person

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Focused Inspections

• Hazards Focused on (90 of fatalities)
• Falls (floors, work platforms, roofs) 33
• Struck by(falling objects, vehicles) 22
• Caught in-between (cave-ins) 18
• Electrical (overhead lines, tools) 17

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Types of Citations

• Other than Serious - A violation that would not
  cause death or serious injury
• Serious - A violation where there is a high
  probability of death or serious injury occurring
• Willful - A violation where death or serious
  injury could occur and employer knew or should
  have known the hazard existed.
• Repeat - A violation of any standard or rule
  where upon re-inspection a similar violation is
  found
• Failure to Abate - A violation from failure to
  correct a previous citation in a timely manner

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Citation Penalties

• Other than Serious - 0 - 7000
• Serious - 7000
• Repeated - Up to 70,000
• Willful - 70,000 (per employee exposed)
• Failure to abate - (per calendar day 7000 to
  maximum 210,000)
• Failure to report fatality - 5000
• Failure to post citation - 3000
• Failure to post to 300 log - 1000 / case

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Inspection Categories

• Comprehensive
• A complete walk through inspection of an entire
  construction site or establishment, with the
  exception of areas, such as offices, that are
  obviously low-hazard
• Partial
• A walk through limited to certain areas,
  operations, or conditions that does not include
  all potentially hazardous areas. (Focused
  Inspection).
• Records Only
• A safety inspection limited to an examination of
  an establishments injury and/or illness records
  and an evaluation of compliance with the hazard
  communication standard.

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Surviving an OSHA Inspection
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The Inspection

• Compliance Officer arrives
• Opening conference
• Walk Through
• Closing conference
• Citations
• Settlement agreements

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Documentation

• OSHA Form 200/300 (OSHA Log)
• Accident Reports
• Material Safety Data Sheets
• Self Inspection Forms
• Training (Meeting Minutes)
• Hazcom Program
• Your Safety Program

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Receiving the Compliance Officer
Upon arrival of the OSHA Compliance Officer, the
jobsite Superintendent (or other employer
representative) should greet the individual and
check/verify the Compliance Officers credentials.
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Opening Conference
Compliance Officer will usually cover the
following topics during his briefing

• Nature purpose of visit - Routine inspection or
  employee complaint, if applicable
• Scope of Inspection - Areas to be inspected,
  employee interviews, etc.
• Records to be reviewed
• Invitation to participate in the inspection -
  Employer and subcontractor personnel.
• Distribution of OSHA materials - Copies of the
  Act, standards, promotional materials, etc.

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Walkaround Inspection
The inspection shall be conducted within
reasonable limits and in a reasonable manner
during regular working hours except when mutually
agreed upon by the parties concerned.

• The Compliance Officer shall comply with all
  company safety and health rules during his/her
  inspection, including the wearing of required
  personal protective equipment.

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Walkaround Inspection (contd)

• During the course of the inspection, the
  Compliance Officer may
• Agree to the participation of more than one
  employer representative and one employee
  representative in the walkaround.
• Interview, question or invite comments from a
  reasonable number of employees. If consultation
  unduly hinders work activity, he may arrange for
  off-duty interviews at a location other than the
  workplace. Written statements may be taken under
  certain conditions

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Walkaround Inspection (contd)

• During the course of the inspection, the
  Compliance Officer may
• Receive complaints from employees regarding
  possible violation(s) of the standards, provided
  there is no interference with the inspection
• The Compliance Officer may take photographs.

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Walkaround Inspection (contd)

• During the course of the inspection, the
  superintendent or representative should
• Accompany the Compliance Officer at all times
  during the inspection.
• Take detailed notes of inspection activities
  (comments, samples/tests taken, records
  given/reviewed, location of photos taken, etc.)
• Photograph anything that the Compliance Officer
  photographs (if a camera is convenient).
• If requested, ensure that the Compliance Officer
  is permitted interviews with jobsite employees.

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Walkaround Inspection (contd)

• At the conclusion of the walkthrough, the
  Compliance Officer will ensure that employee reps
  are informed of the apparent violation(s), if
  any, found during inspection.

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Closing Conference
At completion of the inspection, a closing
conference will be arranged to permit the
Compliance Officer to advise the company and/or
any subcontractor representatives of any alleged
violation(s) observed during the inspection.
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Closing Conference (contd)

• The Compliance Officer should indicate the
  applicable section(s) of the standards which are
  alleged to have been violated and provide
  information on the following
• Alleged violation(s), which may be the basis of a
  citation
• Methods used to establish abatement period(s)
• Penalty determination procedures.

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Closing Conference (contd)

• Appeal and contest procedures.
• Abatement letters and follow-up inspections
• Variance procedures.
• Availability of an informal conference with the
  area director.
• Distribution of OSHA Material (if not done at the
  opening conference

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The Citation

• Normally arrives by mail (certified).
• Tells what type of violations were noted
• Serious (fine up to 7,000)
• Other (normally no fine)
• Repeat (fine up to 70,000)
• Willful (fine up to 70,000/day)
• Shows inspections date(s) and location/site

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The Citation (contd)

• Lists Information of Each Violation Type
• Standard of Act violated
• Description of violation
• Abatement date for each violation
• Penalty (if any) for each violation

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Penalty Adjustment Factors

• Size

Employees 1 - 25 26 - 100 101 - 250 251 - more
Percent Reduction 60 40 20 None
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Penalty Adjustment Factors

• Good Faith

Percent Reduction 25 15 0

• Effective written program which includes
• management commitment employee involvement
  worksite analysis hazard prevention control
  and safety health training
• all applicable programs required under OSHA
  standards
• Effective program showing minor deficiencies
• Otherwise

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Penalty Adjustment Factors

• History

Percent Reduction 10 0

• Employers who have not been cited for serious,
  willful or repeated violations in past 3 years
• Otherwise

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Options after the Citation arrives

• No Contest
• Notify OSHA by letter as to corrective action
• Pay fine(s)/penalties
• Contest
• Must be done within 15 working days (by letter)
• Can contest
• Penalty Amount
• Type of Citation
• Abatement Date(s)
• Actual Violation

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Options after the Citation arrives

• Informal Conference
• Must be arranged within 15 working days of
  receipt of citation
• Can negotiate same items as contest
• Formal Contest
• Must be done within 15 days after reciept of
  citation or 15 days after results of informal
  conference. Most likely legal council needed.

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