SAFETY SOLUTIONS: When OSHA Arrives
Since my last article many things have happened to some of our readers. One reader contacted me and stated that OSHA visited him and issued citations for unsafe conditions at his plant. The OSHA visit occurred when a disgruntled employee filed a complaint. OSHA issued citations and penalties for not having a formal safety program and for unsafe conditions.
Another reader contacted me, and their story affected me the most since, as I stated before, I wonder if people read these articles. Well my question wase answered recently. A person e-mailed me and after reading her note I had to cry. She contacted me after she was searching the internet to find information about guarding skylights on roof tops. She stated that she read the article entitled “How Much Is a Life Worth”, but it was too late to protect her husband who had fallen to his death in October 2001. In this case, her husband worked for a small employer on a project that would cost a total of $390.00. A larger employer hired them to install a security camera on a roof of their building and direct the camera through the skylight, since they thought someone was stealing from them. Well, her husband tripped and fell through that skylight and was killed, leaving a wife and three children behind. The large employer did not even try to help her with the funeral expenses. Could this accident have been prevented? Who should have placed guards around the skylights prior to allowing anyone on the roof?
Safety is a key factor in any organization, and maintaining the best interests of employees of the organization enables individuals to take pride in their work and enjoy their workplace. Ignoring safety issues will eventually result in employee injuries and unwanted visits from OSHA. The need to have the organization in compliance with OSHA standards will ensure a safe and comfortable workplace for all concerned.
An employer cannot implement safety and health rules and then ignore whether their employees are complying with those rules. Employers have a duty to actively and regularly inspect their worksite to ensure employees are abiding by safety and health rules and that any OSHA violations are corrected. The courts, as well as OSHRC (Occupational Safety & Health Review Commission), have consistently held that an employer cannot be held liable for an OSHA violation unless the employer knew, or through the exercise of reasonable diligence, should have known, about the hazard. OSHA must prove that the employer had actual or constructive knowledge of a hazard; in other words, had they taken the time to look, they would have seen it.
Fear of the OSHA doesn’t have to paralyze you when an inspector turns up at your worksite. Plenty of employers have survived OSHA inspections, and some of those survivors are willing to share their insights and experiences to guide you through an impending inspection.
If Federal OSHA or a state OSHA inspector chooses your worksite for inspection, you can generally expect that the following sequence of events to occur:
Upon arrival, the compliance officer will ask to speak with the manager or top official of the company.
Get the Facts
When an inspector arrives on site, ask to see his credentials - this will consist of a photo ID on one side and the U.S. Department of Labor emblem on the reverse. Make sure the person has official credentials and call the agency to verify. There have been cases where an environmental or activist group forged credentials to get into a company.
The compliance person will hold an Opening Conference. Ask for some time to assemble your team, designate who will accompany the inspector on any required tours and notify company officials and legal counsel of the visit. The inspector, called a compliance safety and health officer, or CSHO, expects that you will need some time and is prepared to wait prior to convening the opening conference. The rule of thumb is, from the time they make entry, you’ve got an hour to assemble whomever you should.
At the opening conference, the OSHA inspector will explain the purpose of the visit. At that time, ask for a copy of the complaint and inquire about the nature of the inspection. Is it a wall-to-wall inspection? Is it limited to a specific complaint?
If it is a complaint, the compliance officer will give you a copy of the complaint, without the complainant’s name. Then the compliance officer will explain the nature and scope of the inspection. They will explain what they will be inspecting and how the inspection will be conducted including how they will address any hazards in plain view. Any hazards that the inspector sees along the way, they have the right to address. You decide how to get them to the area where they need to be without giving them a tour of your entire facility.
When you confront OSHA on legal grounds regarding an inspection, your chances of winning are slim. Invariably, OSHA’s rights trump the employer’s. Basically, the Occupational Safety and Health Act gives OSHA inspectors the right to go wherever they want, perform whatever tests they want and speak to workers outside your earshot (but with a union representative present if your company has a union). The Act also guarantees workers the right to express their views without retaliation.
You can demand assurances that the agency will guard your trade secrets, and encourage inspectors to conduct employee interviews in ways that won’t hamper their inspection. You also can accompany the inspector during the inspection and take your own photos, videos and tests to compare with theirs. At any point during the visit, you do have the right to deny access to OSHA, unless the agency has a warrant. But the demand for a warrant is a right that’s rarely exercised because it only delays the inevitable.
Your Rights and When to Assert Them
Be Professional and Courteous
Veterans of site visits report that, because the deck is stacked in OSHA’s favor, you can’t afford not to be cooperative. Your watchwords should be professionalism and cooperation. Avoid being obstreperous or not providing responses to legitimate questions. Answer only the questions they ask and don’t volunteer much information; don’t be hostile and, whatever you do, don’t lie. If you don’t know an answer, say "I’ve got to check." Don’t make something up or tell something untrue. It will take away your credibility and you may be criminally liable.
The Shortest Route and Fastest Solution
Once an inspector arrives on site, if it is not a wall-to-wall inspection, you decide the route he takes to his target, which means you control his ability to see additional conditions in plain sight that might pique his interest. At any time, based on what they see or hear, CSHOs can expand the visit into a wall-to-wall inspection. Authorization is only a phone call away. After the walk-around inspection the compliance officer will hold a closing conference to discuss any hazards found and discuss your rights.
The Closing Conference
When the inspection is completed, the CSHO will hold a closing de-briefing and go over the violations discovered. Don’t expect to hear about potential penalties at this meeting; penalties cannot be discussed until the CSHO’s supervisor reviews the report and issues written citations with penalties.
At that point, some employers may be eligible for an Expedited Informal Settlement Agreement. It is offered only to employers where there were no repeat, willful or failure-to-abate violations identified in their audit and where they were willing to correct the violation found no later than the dates indicated in the citation. It is always to your advantage to ask for an informal conference settlement? This can cut an employer’s penalties by as much as 30 percent.
If you disagree with the citation for any reason, request an informal conference with the Area Director within 15 days of receiving the citation. At this meeting you discuss your grievance with the citation, for example if you feel the penalty is too much or you need more time to correct the violation. The Director signed the citation can adjust it, reduce penalties and extend abatement.
Follow Up Inspections
If your company has received a citation, a compliance officer may make a follow-up inspection to verify that (a) the citation was posted, (b) violations have been corrected, and (c) employees are adequately protected.
You may not feel like rolling out the red carpet for an OSHA compliance officer, but a courteous manner and showing a "good faith" willingness to comply can do your company a lot of good. Keep in mind that OSHA standards are minimum standards for employee safety and health. The amount of cooperation shown during the inspection, and how quickly you correct identified hazards, will often reduce any penalty that is imposed. On the other hand, if you are confrontational, you may never get a break.
If you need help defending your company please contact us - we are here to help. As an additional reference, the following websites provide a wealth of information and hundreds of safety related products.
Occupational Safety & Health Administration
National Institute for Occupational Safety & Health
Canadian Center for Occupational Health & Safety
National Safety Council
American Society of Safety Engineers
Safety Products Retailer
Safety Products Retailer
Safety Products Retailer
For more information, click on the Author Biography link at the top of this page.