One of the many excellent presentations at February’s Remodelers Conference was Workplace Safety with James Laboe of Orr & Reno. He advises organizations what and what not to do when OSHA comes knocking at your door.
The Occupational Safety and Health Act, “Osh Act,” was created by President Nixon in 1970. For many years workers were being injured and killed at their workplaces. With over 14,000 job-related deaths, 2.5 million disabilities, and 300,000 new occupational diseases, the government had to act.
These are the five areas James focuses on when advising clients.
OSHA will show up unannounced. Knowing how to handle the inspector and the document retrieval process upfront will help minimize downtime for your office and employees.
If there is a fatality or significant injury, it will disrupt your organization. If there is a fatality, OSHA and the state police, and other state organizations will come to your workplace to investigate. It can be a daunting process. Being prepared helps you manage the civil liability along with the OSHA citations. Please do not show the inspectors more than they ask to see. Bringing them through other areas of your workplace that are not under inspection could cause OSHA to ticket more citable offenses. Try to anticipate issues that may arise during the inspection. It could save your organization time and money.
Know what the reporting requirements are. You must contact OSHA within 8 hours of a work-related fatality. Any amputation, which includes a finger with or without bone loss, loss of an eye, or in-patient hospitalization, needs to be reported within 24 hours.
Missing these reporting times is a separate violation.
Advance Preparation for OSHA Inspection
OSHA is there to gather evidence of violations. OSHA is not there to help, their job is to issue citations, and they take that job seriously. Communicate with the OSHA inspectors, but be on guard. Do not give an inspector more information than they ask for during the investigation. Inspections could result in citations, civil liability, or criminal liability. You need to be prepared.
Goals and Basic Questions
Try to minimize operational disruptions to your organization. Control the information and documentation that is given to OSHA. Do your best to identify their concerns and address those early on in the inspection. Present your facility and operation in the best light to minimize your liability.
- Always cooperate with OSHA to make the process easier, but know your rights. You have the right to ask for a warrant, but it is only necessary for specific situations. A warrant would help you control what areas of the workplace OSHA can inspect, but cooperation with an inspector goes a long way. It’s always good to have a walkaround team that Human Resources typically heads up to help control the inspection locations and track documents given to OSHA. Remember, you have the right to a reasonable inspection.
Preparing for the opening conference
OSHA conducts five types of inspections. Imminent Danger, Fatality/Catastrophe, Complaint, and Regional Programmed. When OSHA inspectors first arrive, be sure to ask for their credentials. There have been instances of people impersonating inspectors. When the inspectors first arrive, it’s your opportunity to get more information. Why are you here? What are you looking for? What kind of inspection is this? It’s important to know this information upfront so you can manage the inspector’s expectations. Always ask the C.O. to agree to the following protocols.
- Submit document requests in writing to a company representative
- A company representative must accompany C.O. at all times
- No lengthy/disruptive employee interviews during walkaround (e.g., over 5 minutes)
Even though you want to cooperate with OSHA, do not allow any employees who have not been designated as the company representative to sign off on OSHA documentation or interviews. Do not allow tape or video recording of employee or manager interviews. When OSHA takes pictures, it’s always a good idea for your representative to take the same picture. It is too difficult to get the images from OSHA after the investigation. Say no to drones. Drones allow investigators to view areas of your workplace that are not included in the inspection.
Preparing the Walkaround team
The walkaround team should always know why OSHA is there, what areas OSHA will investigate, and what your organization needs to disclose. Be truthful and accurate with the inspector. If they found any falsehoods, that is a crime. Avoid giving opinions. Only state the facts. Refrain from admitting that a condition or practice is a violation. Pay close attention to OSHA’s concerns. If you can give them enough information about your training, guidelines and that the organization could not have predicted this hazard, there is a chance you can avoid the citations in a severe case. The most important thing for an OSHA inspection is to know your rights.
Post Inspection Procedures
Foremost, find out what regulations are in play. After you receive your citations, set up an informal conference that will allow you to start a dialogue with OSHA. You can consider voicing your defenses or listen and collect information from the meeting such as fines and characterization (e.g., serious, repeat, willful). Penalties are high and increasing every year. If you take a $2000 violation and repeat that offense in the next five years, that could be considered a repeat offense and charged $134,937. It is essential to take the minor offenses seriously and resolve them, so you do not face a higher penalty.
The employer has 15 working days from the receipt of the citation to file a note of contest. They do not include weekends and holidays in the 15 days. The notice of contest must be in writing and mailed to the Area Director. After 15 days, if there is no contest, the citation is deemed a final order of the OSHRC.
By preparing in advance and carefully considering inspection protocols, the employer can assert some measure of control of the inspection process and may be able to significantly reduce OSHA and other liability.