While there's little upside to facing an Occupational Safety and Health Administration (OSHA) inspection, it is possible to survive the ordeal unscathed. Here's what you need to know to be prepared for what is likely to happen should an OSHA inspector come knocking at your door.
What Are Your Chances of Being Inspected?
Knowing what can trigger an OSHA inspection can help you predict the likelihood of one taking place at your facility.
'Because OSHA has a relatively few inspectors – and because recent political pressure from Washington has been to cooperate with employers – the main focus of spot inspections is on employers who have histories of workplace injuries, or non-compliance,' says James Walsh, author of Silver Lake Publishing's Workers' Comp for Employers and editor of OSHA in the Real World. 'Beyond this, inspectors tend to focus on industries (often defined by SIC codes) that have bad safety records. These industries include construction, petrochemical and general chemical production, food processing, textiles and heavy manufacturing. In addition, vulnerability to inspections generally reflects regional trends. For example, poultry processing plants in the southeast get inspected a lot, as do oil companies in the southwest.'
OSHA has established a system of priorities based on the 'worst first' approach under the category of 'imminent danger' – the reasonable certainty that a danger exists that is expected to cause death or serious physical harm. From highest to lowest, these priorities include:
1. Catastrophes &, Fatal Accidents – any employee death or hospitalization of three or more employees.
2. Employee Complaints – when employees feel they are in imminent danger, threatened with physical harm or otherwise working in an unsafe workplace.
3. Programmed High-Hazard – specific industry areas have been identified as high hazard by OSHA and are targeted for inspection with greater frequency. Those establishments with lost workday rates at or above the most recently published Bureau of Labor Statistics national rates may be flagged for inspection.
4. Follow-Up Inspections – to ensure cited items have been abated.
Safety managers should consider the fact that most OSHA visitations are accident- and complaint-driven. In fact, some 60 percent to 70 percent of inspections are triggered by employee complaints alone. Knowing this, employers should focus their efforts on getting employees to call their own company representatives for safety support, not OSHA. This can be achieved by building employee confidence in your response to safety concerns.
What an OSHA Checkup Involves
When OSHA arrives at your facility, the compliance officer will explain why it was targeted for inspection and should explain the scope of the inspection, the purpose and standards and, if applicable, provide a copy of the employee complaint.
'In most cases – unless an accident has just happened or there's been some sort of tip to non-compliance – the inspectors will want to see paperwork first,' says Walsh. 'This means they'll check injury-reporting logs, training records and sometimes personnel files should these include parts relevant to who works in high-risk areas. Then inspectors will examine the workplace itself, usually looking for signage and equipment compliance.'
Employee anonymity is always maintained. The employer will be asked to select an employer representative to accompany the compliance officer during the inspection. An authorized representative of the employees, such as a union steward, also has the right to attend the inspection. The destination and duration of the inspection are determined by the compliance officer and will usually consist of a methodical inspection of the facility. The compliance officer may consult with a reasonable number of employees, privately if desired. This is where your safety program is most likely to reveal weaknesses, as employees can be asked a series of questions related to the complaint or general questions about their understanding of your company's safety program. They will be informed that OSHA prohibits discrimination in any form by employers against workers because of anything they say or show the compliance officer during the inspection.
Questions might include:
- the employees' safety orientation,
- specific job training,
- safety meeting occurrence,
- understanding of safety rules,
- what employees have been trained to do in case of an accident or emergency,
- whether employees feel that their job function is safe.
During the course of the inspection, the inspector will typically ask to see your required written programs, training records, evidence of certification (where required), chemical inventories (if applicable), MSDS and OSHA 300 Log. The inspector may request copies of these and other documents as well, which you are obliged to supply. So know where these documents are kept and keep them in good order.
During the closing conference, the inspector will discuss all non-compliant conditions identified and violations for which you may be cited. You will have the opportunity to produce records that show compliance efforts or that will assist OSHA in determining the time needed for abatement of the hazards. The inspector will not indicate any proposed penalties as penalties are determined by the area director. You must post a copy of each citation received at or near the place in which the violation occurred. It must remain there for 3 days or until the violation is abated, whichever is longer.
What Can Happen if You're Not in Compliance?
Companies found to be out of compliance face several important challenges. From an employee standpoint, a non-compliance action from OSHA, confirms original suspicions that their workplace was not necessarily safe and that management is not actively involved with safety. This may create more distrust and anxiety amongst your work force and can spark additional complaints.
Furthermore, OSHA violations are publicly available and can create a poor company image. Lastly, a range of potential citations and penalties is possible for violations identified during an OSHA inspection. The area director has some discretion in determining the nature of, and the penalty for, a violation.
Citation categories and associated penalties include:
1. De minimis, penalties unlikely
2. Other-than-serious, $1,000 to $7,000.
3. Serious, $1,500 to $7,000.
4. Failure to post, up to $7,000.
5. Willful, $5,000 to $70,000.
6. Criminal willful (determined after a finding of guilt in a criminal proceeding), up to 6 months' imprisonment and a $250,000 fine for an individual or a $500,000 fine if the employer is a corporation (for a first violation).
7. Repeated (determined in a follow-up inspection), up to $70,000.
8. Failure to abate, up to $7,000 per day.
9. Recordkeeping, typically an 'other-than-serious' finding unless it involves falsification of records, which carries a potential 6-month imprisonment and a fine of up to $10,000.
10. Assaulting, interfering with or resisting an inspector in the performance of his or her duties, imprisonment for up to 3 years and a fine of up to $5,000.
'Since most spot inspections occur in workplaces that have some history of problems, non-compliance often means some temporary shutdown, slowdown or other loss of productivity,' says Walsh.
Steps to Avoid OSHA Complaints
The best way to avoid an inspection is to avoid employee complaints to OSHA. Preventative programs do pay off, so consider taking the following steps:
- Participate in an OSHA voluntary compliance program. 'These programs are for companies that haven't had safety problems (or at least not in the very recent past),' explains Walsh. 'In exchange for the company voluntarily installing detailed safety training and injury-reporting processes, OSHA agrees not to make any surprise inspections. Participating in these voluntary programs often allows an employer to handle complaints internally, before a report to OSHA results.'
- Develop internal complaint systems, and make them known to all employees. 'In many cases, these systems can be applied as part of general safety/workers' comp education programs,' says Walsh. 'The object is to create some goodwill between the company and its workers. If the workers believe that the company is doing its best to make a safe workplace, they are less likely to call the feds.'
- Ensure that potential serious or willful regulatory violations are identified and aggressively eliminated. Regular safety/compliance inspections by knowledgeable personnel provide a mechanism for hazard identification and demonstrate company commitment to safety. Employee involvement in inspections, safety committees and safety program development can enhance program effectiveness exponentially, and provide viable internal alternatives to employee complaints to OSHA.
- Provide proper training and implement an effective safety program. Unfortunately, many safety managers have limited resources and staff to focus on this area. It makes sense to outsource the burdensome aspects of compliance so that the safety manager can focus on providing a safe working environment rather than spending time on such tasks as obtaining revised MSDSs and filing paperwork.
Outsourcing partners can provide training, MSDS obtainment, chemical inventory management and classification as well as compliance reporting. Many offer emergency response to chemical spills, poisonings and exposures and even transportation services. Providing 24-7-365 emergency response to an employee can go a long way in making them feel confident in the company's safety program, as well as its commitment to their safety.
Getting into Shape
OSHA rarely provides industry the opportunity to prepare for compliance inspections. Therefore you should shape up by determining what to address in order to move into a proactive safety and compliance path.
The formula is simple:
- Identify all safety and compliance issues, prioritize those of greatest consequence followed by those easiest to correct, and document a strategy and timeline for addressing the others.
- Audit facility and operations.
- Immediately take action to address acute threats to employee safety.
- Ensure that required written programs and record keeping are in place.
- Initiate training programs and related documentation
- Develop a written plan and timeline to address all other issues identified in the audit.
- Implement the plan.
Sidebar: Checking Up on Your Compliance Status
OSHA Log Recordkeeping: All companies with 10 or more employees are required to maintain employee injury and illness logs unless the company is classified as a partially exempt industry (in a specific low hazard retail, service, finance, insurance or real estate industry). However, all employers covered by the OSH Act must report to OSHA any workplace incident that results in a fatality or the hospitalization of three or more employees. The logs, OSHA forms 200 and 101, must be filled out each time an employee has an OSHA-reportable injury or illness. An annual posting requirement also applies.
Personal Protective Equipment: All companies whose employees need personal protective equipment to safely perform their jobs (e.g., hard hats, work shoes, gloves, aprons and goggles) must evaluate the equipment needs for each job category, develop and enforce a written policy, provide the equipment, train employees, and enforce the proper use of the equipment.
Hazardous Chemicals: If, in the course of their employment, employees use any of the chemicals contained in OSHA's hazardous chemical list (29 CFR 1910.1200), you are required to develop a written hazard communication program, maintain material safety data information, meet certain labeling requirements, and give your employees hazard-communication training. Take note: many cleaning products, such as ammonia, bleach, Lime-A-Way and most stainless steel cleaners, are included in the list.
Lock-Out/Tag-Out: If employees perform service or maintenance on equipment that has stored energy capable of being released while the work is being performed (e.g., conveyor belts, cranes, furnaces, etc.), you are required to have in place written measures to lock or tag out all such machines and to provide necessary training to all employees.
Powered Industrial Truck Maintenance and Training: As of March 1999, all employers who have employees using powered industrial trucks (fork lifts, pallet jacks, etc.) are required to provide such employees with formal training before they are allowed to operate the equipment. In addition, employers are required to meet certain daily and periodic truck maintenance obligations. All training and maintenance procedures must be put into writing.
Occupational Noise Exposure: If there are areas in your workplace where people have trouble hearing each other because of the noise level of the equipment, your workers are probably close enough to the permissible limit of noise exposure (an 8- hour, time-weighted average of 85 decibels) to obligate you to test those work areas. If the noise levels are too high, the standard requires the development and implementation of a full hearing conservation program, including work area noise level testing, annual hearing tests, provision of hearing protection and enforcement of its use and employee training.
Bloodborne Pathogens: While this standard is essential to health care facilities, OSHA also enforces it with companies where first aid is administered by designated employees (required when treatment for injured employees is more than 10 minutes away from the business). The standard requires companies to have a written policy for dealing with emergency situations, provide employee training, implement procedural safeguards, and offer hepatitis B vaccines to its first aid-administering employees.
Permit-Required Confined Spaces: This standard applies where the premises contain spaces with restrictive means of entry or exit that are large enough to allow an employee to enter but are not designed for continuous occupancy (e.g., tanks, storage bins, vaults, pits, etc.), and which also either contain material which could engulf an employee (e.g., a silo), have inwardly converging walls or a tapering sloped floor that could trap or asphyxiate an employee (e.g., a hopper), or could contain an atmosphere that exposes employees to a risk of death, incapacity, impaired ability to escape, injury or acute illness (e.g., combustion chambers). If this standard is applicable, a large number of compliance measures will need to be taken, including the provision of emergency response and air sampling equipment, employee training, the development of a written plan to address concerns and the development of entry protocols.
Respiratory Protection: If employees require protective respiratory equipment to prevent exposure to health hazards, or if a company reasonably anticipates' the need to use such equipment (e.g., needed only once every 6 months), OSHA requires the development and implementation of a written program, the provision of needed equipment, enforcement of equipment use, cleaning and maintenance and the provision of annual training, medical exams and respirator fit tests.
Ergonomics: When a company's employees have a large number of work-related musculoskeletal injuries (e.g., twisted knees, strains and sprains to wrists and backs) as compared to other employers in its industry, it is more likely to be cited for ergonomics hazards during an inspection. To avoid this result, companies should implement measures that effectively address the ergonomics hazards posed by their workplaces. This includes, among other things, evaluating the high-risk jobs, implementing engineering, administrative or other controls, providing employee training and developing a written program addressing all concerns and necessary remedial measures.
OSHA Poster: All employers are required to hang the OSHA Poster on their employee bulletin boards The poster provides employees with basic information concerning their rights and obligations under the OSH Act and can be obtained from your local OSHA office.
Steve A. Hollingsworth is director, Technical Services, for 3E Co., Carlsbad, Calif. He has a B.S. in Environmental and Occupational Health, Cal State University, Northridge. He has developed and managed complex technical and informational EH&,S systems for several domestic and international entities. Prior to joining 3E Co., Hollingsworth served for 8 years as the worldwide EH&,S manager for Mattel and before that as senior industrial hygienist with Hughes Aircraft Co. in California.