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OSHA Fines are Increasing

Ready for an OSHA Inspection?

Inspection Advice from Former OSHA Inspector

Paul McNeill, CSP, CHST Certified Safety

Professional Construction, Health and

Safety Technician

OSHA Laws Have Updated

In November 2015, previous bans on OSHA penalties were removed

Penalties have been increased dramatically

In 2016, penalties were adjusted for inflation

Each year the penalties will increase with annual inflation

Penalties Update Summer of 2016

By July 1, 2016, the Department of Labor will publish in the Federal Register an Interim Final Rule adopting the new penalties

Penalties will take effect on August 1, 2016

If companies are currently participating in inspections that may extend beyond

August 1, 2016, any proposed penalties will fall under the new penalties

Preparation for Inspection

Organizations must have a plan for the OSHA inspection: Before it occurs While the inspection occurs After the inspection

Company OSHA

readiness requires planning

Advance Preparation for OSHA Inspection

Organizational planning can limit delays in operations

Prior planning could limit fines

Advanced preparation keeps employees safe and decreases organizational liability

Written safety programs allow an organization to maintain OSHA compliance

The plan can even remedy occupational safety concerns not covered by OSHA

Employee involvement with the written safety plan will put the organization in a more positive light when the OSHA inspector arrives

Written Safety Program

Safety Committee Meetings

Meetings should discuss the type of questions that an inspector might ask Employee training questions Employee familiarity with safety programs

Safety committee meetings should be be documented for employees and OSHA

Safety Checklist

A safety checklist provides employees a daily reminder of safety’s importance

The checklist should be reviewed by supervisors and safety personnel at the organization

Different checklists can be utilized by individual departments to meet the organization’s needs

Employees should be using the checklist to look for safety hazards on a daily basis Simple daily checks such as looking for blocked exits can

establish patterns that avoid OSHA citations

Establishing Company Representatives for Inspection

Personnel involvement in the OSHA inspection must be designed in advance of the inspection

Representatives are needed for: OSHA opening conference Walkaround inspection Closing Conference

Training of all representatives is highly important

OSHA Inspection Roles

Determine which manager/supervisor will be the primary contact with the OSHA compliance officer

Establish union representatives to work with OSHA

Decide who will accompany the inspector on the walkaround

Define who will receive OSHA receives requests for documents

Clearly Defining Roles

Primary Contact with OSHA

Ideally this contact should be the company’s safety director

Individual must be well versed in OSHA standards related to the facility including: Health and safety

conditions at the facility Company’s health and

safety program Location of all company

safety records

Primary Contact with OSHA

Representative needs to request the purpose of the OSHA inspection An inspection involving a complaint can

limit the scope of the OSHA inspector's scrutiny

Contact must have knowledge of national emphasis programs that relate to the organization's industry Combustible dust, federal agencies,

hazardous machinery, hexavalent chromium, isocyanates, lead, primary metal industries, process safety management, shipbreaking, silica, trenching and excavation

National emphasis programs may involve a wall to wall inspection

Anything an OSHA inspector can observe in plain view is considered in evaluating safety conditions and can result in citations

Accompanying the OSHA Inspector

The individual(s) accompanying the inspector should be defined before the inspection

This individual will document the areas reviewed by the inspector and any comments made to or by the inspector

While accompanying the inspector, pictures can be taken of the conditions the inspector notices

Receipt of OSHA Documentation Requests

Person handling documentation requests must be thoroughly trained and know the location of safety documentation

OSHA inspector may request copies of documents Companies have the option to

ask OSHA to make a written request

All written requests from OSHA should be reviewed by staff before a response is made

Produce requested documents in a timely manner Citations can be written for

noncompliance

Answer only the document request that is asked

Determine in Advance Whether to Request a Warrant

Organizations have the right to ask OSHA inspectors for a warrant for probable cause to inspect

While this option is legally permissible, it can be disadvantageous to an employer

Often, requests for a warrant still result in the area being inspected OSHA inspector will contact

OSHA supervisor and regional director

Determination of whether a warrant is required will be made by the OSHA regional director

Requesting a warrant creates curiosity for the inspector and may result in enhanced attention to the establishment

The Day of the Inspection

Opening Conference

Walkaround Inspection

Employee Interviews

Closing Conference

Opening Conference

Send for the organization’s pre-planned OSHA representatives during the opening conference

Determine what the subject of the inspection is Complaint Programmed inspection Local enforcement program

The OSHA inspector will allow up to an hour before beginning the inspection Do not delay the inspection There is a specific place on the OSHA notes

for delays

Opening Conference

Use the time during the opening conference to decide the direction of the walkaround inspection

Notify floor supervisors to utilize daily safety checklist

OSHA inspectors have to undergo the same safety orientation/briefing as employees and wear the appropriate personal protective equipment

Managing the Inspection

OSHA inspectors must be accompanied at all times by company representatives

The individual(s) going on the walkaround need to make notes about anything the inspector says is in an unsafe condition These notes will be used during the

closing conference or any informal conference

Pictures During the Inspection

The OSHA inspector may or may not take pictures

Organizations can take a picture at the same time the inspector does Representatives should politely ask

what condition attracted attention

Taking the pictures and writing out detailed notes gives material to contest a proposed citation

Employee Interviews

Inspectors can ask to do a random sample of private employee interviews

In a company with a union, an employee can choose to have a union rep or not

It is not common for managerial staff to be present during the interview Requesting a manager to be present raises red flags with

OSHA and may bring unnecessary attention to your organization

Briefing employees about the types of questions that may be asked prevents the need for management presence

Closing Conference

The OSHA inspector will lead the closing conference Inform the organization of any conditions that they thought

were unsafe Explain possible citations Request documentation Note the organization’s response to feedback

Attitude Matters

There is a section on the OSHA inspection report for “any unusual conditions-negative employer attitude”

Remain polite and neutral with all issues but explain why you feel a condition is not unsafe

There is a section on the closing conference form for the inspector to make comments about on any issues that were brought up during the closing conference

Be sure that high quality notes are taken during the closing conference

After OSHA Leaves

Correct any unsafe conditions that the OSHA inspector may have pointed out.

Any citations that are received must be posted in the workplace.

Citations must be posted for a minimum of three days and should remain posted until the issue is resolved.

Informal Settlement Procedures

Companies have 15 working days after receiving a citation to contest If the time elapses, the original fines will remain on the final

order Before the 15 days elapse, an informal

settlement conference can be requested

The notes and pictures your representative took during the walkaround will be integral

During the Informal Settlement

Discuss why you feel a citation is inaccurate

Negotiate for the status of an item to be reduced from “serious” to “other”

Local OSHA Area Offices have the authority to reduce monetary fines by 30% - 40%

Appeals Procedures After the Informal Conference

Companies can initiate a formal appeal by filing a “Notice of Contest” with OSHA Area Director within 15 working days of citation receipt Violations, monetary penalties, and the abatement deadline can be

appealed

If the informal conference does not result in a favorable settlement, your case file is sent to the Regional Solicitor’s Office of OSHA There will likely be further attempts to get your company to settle on

any citations

Trial Before an Administrative Law Judge

The Regional Solicitor has limited resources

Only a minute percentage of cases with citations issued by OSHA ever go all the way trial For example, in the nearly 700 OSHA inspections I

performed not a single case went to trial

Summary

Regardless of what the penalty amounts might become after OSHA increases them, employers should focus efforts on implementing an effective safety program and preparing for an OSHA inspection.