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Preparing for an OSHA Inspection

By December 9, 2020 No Comments
Two construction workers preparing for an OSHA inspection

The Occupational Safety and Health Administration (OSHA) was created by the Occupational Health and Safety Act of 1970 and is part of the U.S. Department of Labor. OSHA’s goal is to confirm safe and healthy working conditions through establishing and enforcing standards with professional training, education, and guidance. To safeguard workers’ rights, OSHA conducts inspections, typically without advanced notice.[i]

As defined by OSHA, an inspection may occur under the following situations and in respective order of priority:

  1. Imminent danger situations: hazards that could result in death or serious physical injury and require immediate correction or removal of endangered employees
  2. Severe injuries and illnesses: require employers to report all work-related fatalities within eight hours and all work-related in-patient hospitalizations, amputations, or losses of an eye within 24 hours of the incident
  3. Worker complaints: when an employee alleges workplace hazards or violations
  4. Referrals: inquiries from other local, state, or federal agencies, individuals, or organizations
  5. Targeted inspections: specific high-hazard industries or workplaces that have a history of repeated injuries and illnesses
  6. Follow-up inspections: conducted as checks for correction of citations from previous inspections

OSHA Inspection Process

Before

While most businesses should not necessarily expect an OSHA inspection, they should be prepared for one. To help prepare for an OSHA inspection, you should:

Establish designated employees for inspection. Train these designated employees on all phases of an inspection. Consider training an adequate number of designated employees to avoid schedule conflicts. This training should include all managers so they understand how to contact the designated employees and where the CSHO may wait while designated employees are notified.

Select an area for discussions. This should be an area where the CSHO can wait while the designated employees are notified, as well as conduct employee interviews if necessary.

Maintain proper documentation. It is imperative to have updated safety documents ready for the CSHO to review. Some of these documents may include:[ii]

  • OSHA 300 (Log of Work-Related Injuries and Illnesses)
  • OSHA 300A (Summary of Work-Related Injuries and Illnesses)
  • OSHA 301 (Injury and Illness Incident Report)
  • Injury and accident reports
  • Training program certifications or proof of completion
  • Safety data sheets
  • Company safety compliance programs and policies

Prepare an inspection kit. This should include:

  • A camera to record and photograph the inspection
  • Any personal protective equipment necessary
  • Proper supplies to identify confidential or other necessary information
  • Basic facility information (i.e., work performed, employee count, manager names, contact information)
  • Local OSHA office contact information
  • Testing equipment

During

When the CSHO arrives, greet them and request to see his or her credentials if not offered. Verify the credentials and contact your local OSHA office if you have any questions. Guide the CSHO in the assigned space to wait while you notify the designated employees for the inspection.

Once the inspection is ready to occur, follow these reminders for the opening conference:

  • Determine the purpose of the inspection. If the inspection is a result of a complaint, request a copy of the complaint.
  • Limit the inspection to only the areas cited in the complaint or areas identified on inspection.
  • Verify and confirm with CSHO that any areas of facility that may contain confidential materials or trade secrets will remain confidential.
  • Discuss the employee interview process and document production. Be sure to schedule employee interviews to avoid gaps in coverage.
  • Direct all CSHO requests for information and documentation to be in writing.

During the walk-around:

  • Ensure all individuals have the required personal protective equipment and following safety protocols.
  • Guide the walk-around to strictly areas cited in complaint or areas identified on inspection to reduce plain view doctrine – where a CSHO may investigate observed hazards during walk-through.[iii]
  • Record detailed notes of CSHO’s findings, as well as your own.
  • Mimic pictures, samples, and measurements CSHO takes at the same time.[iv]
  • If able, complete “quick fixes” immediately.
  • With the exception of a company decision-maker, do not interrupt employee interviews. Company decision-maker interviews are highly recommended to have a representative as all statements are considered binding admissions for the employer.

After the inspection has concluded, there will be a closing conference for which you may:

  • Request copies of all samples and monitoring reports taken by CSHO.
  • Request CSHO to produce acknowledgment of receipt for all documentation produced during the inspection.
  • Supply designated contact information to CSHO for all OSHA correspondence post-inspection.
  • Confirm resolved alleged violations.
  • Avoid commitment to corrective actions or dates or admitting to a violation (including being at-fault or that a citation is correct).
  • Address potential violations.[v]

After

After the inspection has concluded, provide the company’s legal counsel with all appropriate documentation provided to OSHA, as well as notes, photos, videos, and relevant documentation taken during the inspection.

Understanding and Addressing Citations

Types of Citations

  • De Minimis: violates technical standards and does not involve any threat to worker safety and health
    • Penalty: Usually no penalty
  • Other Than Serious: unlikely to cause serious physical injury or death
    • Penalty: $13,494 per violation
  • Serious: could cause serious physical harm or death
    • Penalty: $13,494 per violation
  • Willful: violation committed knowingly or with indifference
    • Penalty: $134,937 per violation
  • Repeated: same or similar violation employer previously made aware of, received violation, and not mitigated
    • Penalty: $134,937 per violation
  • Criminal: caused death and willful in nature
    • Penalty: Misdemeanor, $500,000 fine, and up to six months in jail

What to Do If You Receive a Citation

  1. Post the citation. OSHA citations must be posted in all areas for which the violation occurred for three working days or until the violation is resolved, whichever is later.
  2. Notify legal counsel. Send a copy of the citation for legal counsel to review.
  3. Begin abatement. Evaluate all current and previous violations (if any) and correct within the allotted timeframe noted on the citation. Document the corrections to verify abatement was completed.
  4. Record and set reminders for all deadlines. This helps you strategize resolution and avoid last-minute efforts to complete abatement.

Appealing a Citation

If you receive a citation, there are two ways to address it:

  1. You may request an informal conference with the OSHA Area Director and attempt to settle the violations.
  2. If a settlement cannot be reached with an informal conference, you may pay the citation or file a Notice of Contest (formal hearing).

For an informal process, it is integral to schedule it immediately as it must be conducted before the 15-day period for filing a Notice of Contest. During an informal process, you will discuss citations and remedial actions. Be sure to bring supporting documents to provide proof that you’ve remediated each alleged violation. Consult with your legal counsel to prepare and review all components of the review. Maintain organized records of all issues and status to ensure every item has been resolved. If the inspection went well, a reduced penalty may be offered.

For a Notice of Contest, the case if given to the Office of the Solicitor for litigation. A formal hearing will take place before an Administrative Law Judge and may be appealed in federal court.

Navigating OSHA compliance and best practices can be tedious. Adding a citation or OSHA inspection can add layers of complexities employers may require additional professional assistance for. Harbor America’s seasoned safety and risk management specialists can provide you the necessary resources, training, and support needed to maintain your workplace safety. Contact us today to learn more.

 

Sources:
OSHA
Preparing for an OSHA Inspection

 

[i] IMPORTANT NOTE: According to Section 1904.6(c) of the OSH Act, “any person who gives advance notice of any inspection to be conducted under the Act, without authority from the Secretary or his designees, shall, upon conviction, be punished by fine of not more than $1,000 or by imprisonment for not more than 6 months, or by both.”
[ii] All documents should include the current year and the previous five calendar years.
[iii] If the CSHO deviates from the route for the inspection, query about the deviation, then record the deviation and reason for deviation.
[iv] You may request samples and measurements be taken when company conducts its own sampling and monitoring.
[v] Actual citations can only be issued by your local OSHA Area Director and can take up to six months post-inspection to issue.

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