Surviving an Surviving an OSHAOSHA InspectionInspection

OSHA Now and In The Future

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Occupational Safety & Health ActEnacted 4/29/71

Prior to OSH Act• State factory laws• Federal legislation

– Walsh-Heatly– Construction

Safety Act– Workers’ Comp

• Voluntary employer programs

Reasons for OSH Act• Failure of existing

programs– State programs

limited– Federal programs

partial

• Injuries & illnesses increasing

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..

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.

• During an April 29 hearing on OSHA’s outdated penalty structure, Kennedy heard suggestions from AFL-CIO, a former employee of the Department of Justice, and a victims’ representative group on how to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 America’s Workers Act (PAW Act) . . . .

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.

• 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

– 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.

• 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.

• 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)

• 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.

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

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.

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

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)

• Imminent Danger

• Fatal Accidents & Catastrophes

• Complaints

• General Scheduled Inspections (Random)

• Programmed Inspections (High Hzd Industy)

• Follow-Up Inspections

Inspection Priorities

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

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%

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

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

• 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 establishment’s

injury and/or illness records and an evaluation of compliance with the hazard communication standard.

Inspection Categories

Surviving an OSHA Inspection

“An OSHA inspector is here!

What do I do now?”

• Compliance Officer arrives

• Opening conference

• Walk Through

• Closing conference

• Citations

• Settlement agreements

“The Inspection”

• OSHA Form 200/300 (OSHA Log)

• Accident Reports

• Material Safety Data Sheets

• Self Inspection Forms

• Training (Meeting Minutes)

• Hazcom Program

• Your Safety Program

Documentation

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 Officer’s credentials.

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.

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.

Walkaround Inspection (cont’d)

• 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

Walkaround Inspection (cont’d)

• 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.

Walkaround Inspection (cont’d)

• 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.

Walkaround Inspection (cont’d)

• 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.

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.

Closing Conference (cont’d)

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.

Closing Conference (cont’d)• 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

“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

“The Citation” (cont’d)• Lists Information of Each Violation

Type– Standard of Act violated– Description of violation– Abatement date for each violation– Penalty (if any) for each violation

Penalty Adjustment Factors Size

Employees

1 - 25

26 - 100

101 - 250

251 - more

Percent Reduction

60

40

20

None

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

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

• 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

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 ContestMust be done within 15 days after reciept of

citation or 15 days after results of informal conference. Most likely legal council needed.

Options after the Citation arrives