Download Available: How To Handle An OSHA Inspection

Under the Occupational Safety and Health Act of 1970 (the Act), the Occupational Safety and Health Administration (OSHA) is authorized to conduct workplace inspections and investigations to determine whether employers are complying with standards issued by the agency. OSHA also enforces Section 5(a)(1) of the Act, known as the “General Duty Clause,” which requires that every working man and woman must be provided with a safe and healthful workplace. OSHA does not have staff to go and inspect all employers so an inspection is usually a result of a complaint from an agency (fire department, hospital, paramedics), disgruntled employee, or a third party having knowledge of a violation.

Inspections are always conducted without advance notice. There are, however, special circumstances under which OSHA may give notice to the employer, but such a notice will normally be less than 24 hours. These circumstances include the following:

* Inspections due to imminent, dangerous situations that require correction as soon as possible;

* Accident investigations where the employer has notified an agency of a fatality or catastrophe;

* Inspections that must take place after regular business hours or that require special preparation;

* Cases where notice is required to ensure that the employer and employee representative or other personnel will be present;

* Cases where an inspection must be delayed for more than 5 working days when there is good cause;

* Situations in which the OSHA Area Director determines that advance notice would produce a more thorough or effective inspection. Employers who receive advance notice of an inspection must inform their employees’ representative or arrange for OSHA to do so. In certain circumstances, the employer may demand a search warrant. See US Constitution IV Amendment. In high stakes cases where fatality or an amputation is involved, the dealership should seek help of legal counsel, demand a search warrant and may have their lawyer present during the inspection process.

Note 1: As a matter of policy, a 20 minute wait for the OSHA inspector prior to the inspection process is considered acceptable.

Note 2: Search warrants for dealers have been an exception rather than the rule. We recommend that the warrant policy be decided ahead of time rather than bringing it up upon arrival of the inspector. Once knowledgeable consent has been given to the inspector, the warrant requirement is considered to have been waived by the employer. We note that warrants are issued upon probable cause and are limited in scope as to the nature of the complaint against the employer.

INSPECTION PRIORITIES:

Imminent Danger: Imminent danger situations receive top priority. An imminent danger is any condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately or before the danger can be eliminated through normal enforcement procedures. If a compliance officer finds an imminent danger situation, he or she will ask the employer to voluntarily abate the hazard and remove endangered employees from exposure. Should the employer fail to do this, OSHA, through the regional solicitor, may apply to the Federal District Court for an injunction prohibiting further work as long as unsafe conditions exist.

Catastrophes and Fatal Accidents: Second priority goes to the investigation of fatalities and accidents resulting in a death or hospitalization of three or more employees. The employer must report such catastrophes to OSHA within 8 hours. OSHA investigates to determine the cause of these accidents and whether existing OSHA standards were violated. California assesses a penalty of $5000 for failure to report within the 8 hour time frame even if the accident happened on a weekend.

Complaints and Referrals: Third priority goes to formal employee complaints of unsafe or unhealthful working conditions and to referrals from any source about a workplace hazard. The Act gives each employee the right to request an OSHA inspection when the employee believes he or she is in imminent danger from a hazard or when he or she thinks that there is a violation of an OSHA standard that threatens physical well-being. OSHA will maintain confidentiality if requested and inform the employee of any action it takes regarding complaints. In certain cases, it may issue a letter requiring employer to provide proof of compliance. These letters must be replied to OSHA expeditiously with support documents indicating compliance.

Programmed Inspections: Next in priority are programmed inspections aimed at specific high-hazard industries, workplaces, occupations, health substances, or other industries identified in OSHA’s current inspection procedures. OSHA selects industries for inspection on the basis of factors such as the injury incidence rates, previous citation history, employee exposure to toxic substances, or random selection. California requires that employers with Workers Compensation Experience Modification Factor (X-Mod) of 125% or higher receive programmed OSHA inspections.

Follow-up Inspections: A follow-up inspection determines if the employer has corrected previously cited violations. If an employer has failed to abate a violation, the compliance officer informs the employer that he or she is subject to “Failure to Abate” alleged violations. This involves proposed additional daily penalties until the employer corrects the violation.

WHAT DOES THE INSPECTION PROCESS INVOLVE?

Inspectors’ Credentials: When the OSHA compliance officer arrives at the establishment, he or she displays official credentials and asks to meet an appropriate employer representative. Employers should always ask to see the compliance officer’s credentials. Employers may verify the OSHA federal or state compliance officer credentials by calling the nearest federal or state OSHA office. Compliance officers may not collect a penalty at the time of the inspection or promote the sale of a product or service at any time; anyone who attempts to do so is impersonating a government inspector and the employer should contact the FBI or local law enforcement officials immediately.

Opening Conference: In the opening conference, the compliance officer explains how the establishment was selected and what the likely scope of the inspection will be. Take written notes during the opening conference and note the scope indicated by the inspector. The compliance officer will explain the purpose of the visit, the scope of the inspection, and the standards that apply. Wall to wall inspections may occur in the event of a fatality or serious accidents involving amputation or hospitalization!

The compliance officer asks the employer to select an employer representative to accompany the compliance officer during the inspection. This person must stay with the inspector at all times until departure from the company premises. Do not allow the inspector to veer in the direction not agreed in the scope! The compliance officer also gives an authorized employee representative the opportunity to attend the opening conference and accompany the compliance officer during the inspection.

Walk-Through: After the opening conference, the compliance officer and accompanying representatives proceed through the establishment to inspect work areas for safety and health hazards. The compliance officer determines the route and duration of the inspection. We recommend that you LIMIT, LIMIT the scope of the inspection agreed upon the opening conference. While talking with employees, the compliance officer makes every effort to minimize any work interruptions. The compliance officer observes safety and health conditions and practices; if necessary take photos, videotapes, and/or instrument readings; examines records; collects air samples; measures noise levels; surveys existing engineering controls; and monitors employee exposure to toxic fumes, gases, and dust. Take split samples from the inspector at the end of the walkthrough for independent analysis if needed.

When compliance officer finds a violation in open view, called the “plain view exception,” the scope of inspection now incorporates the plain view observation. The compliance officer keeps all trade secrets observed confidential. The compliance officer consults employees during the inspection tour. Where there is no authorized employee representative, however, the compliance officer must consult with a reasonable number of employees concerning safety and health matters in the workplace. Allow consultation with your available employees for the short time period that they have available in their work shift. If the officer demands longer interview process, then the interviews may have to be scheduled after the work hours. We note, this rarely happens, i.e., the inspector does not wait beyond 5PM to complete the inspection!

OSHA places special importance on posting and recordkeeping requirements. The compliance officer will inspect records of deaths, injuries, and illnesses that the employer is required to keep. During the course of the inspection, the compliance officer will point out to the employer any unsafe or unhealthful working conditions observed. At the same time, the compliance officer will discuss possible corrective action if the employer so desires. Some apparent violations detected by the compliance officer can be corrected immediately. When the employer corrects them on the spot, the compliance officer records such corrections to help in judging the employer’s good faith in compliance. Although corrected, the apparent violations will serve as the basis for a citation and, if appropriate, a notice of a proposed penalty. OSHA may reduce the penalties for some types of violations if they are corrected immediately.

Closing Conference: At the conclusion of the inspection, the compliance officer conducts a closing conference with the employer, employees, and/or the employees’ representative. The compliance officer gives the employer and all other parties involved a copy of Employer Rights and Responsibilities Following an OSHA Inspection for their review and discussion. The compliance officer discusses with the employer all unsafe or unhealthful conditions observed during the inspection and indicates all apparent violations for which he or she may issue or recommend a citation and a proposed penalty. The compliance officer will not indicate any specific proposed penalties but will inform the employer of appeal rights.

During the closing conference, the employer may wish to produce records to show compliance efforts and provide information that can help OSHA determine how much time may be needed to abate an alleged violation. When appropriate, the compliance officer may hold more than one closing conference. This is usually necessary when the inspection includes an evaluation of health hazards or after the compliance officer obtains additional factual evidence while concluding an accident investigation. Documents that may be required for review are as follows:

* Illness & Injury Prevention Program (IIPP-CA) or Accident Prevention Program

* Respiratory Protection Program (for bodyshop)

* Heat Stress (for California)

* Hazard Communication Program

* Access to Safety Data Sheets, Etc.

* Personal Protective Equipment Program

* First Report of Injury/Illness (When investigating an accident)

* Relevant training records (related to accident/injury)

Ref: https://www.dir.ca.gov/DOSHPol/CalOSHA-1AY.pdf

 

WHAT ARE THE RESULTS OF AN INSPECTION?

After the compliance officer reports findings, the Area Director determines whether he or she will issue citations and/or propose penalties.

Citations: OSHA citations inform the employer and employees of the regulations and standards alleged to have been violated and note the proposed length of time set to correct alleged violations. The employer will receive citations and notices of proposed penalties by certified mail. The employer must post a copy of each citation at or near the place a violation occurred for 3 days or until the violation is abated, whichever is longer.

Penalties: Fed-OSHA penalty schedule is as follows:

General Maximum: $1000, Serious Violation Minimum: $1500 Maximum: $7000, Willful Violation Minimum: $5000 Maximum: $70,000, Willful Violation (results in death) by Individuals: $250,000 + 6 months jail, Corporation: $500,000 + 6 months jail. Egregious Multiplier Willful penalties are applied on a violation-by-violation basis or employee-by-employee exposure. Repeat Violation Maximum: $70,000, Failure-to-Abate Up to $7000 per day for each day violation continues beyond abatement date. Violating posting requirements may bring a civil penalty of $7000.

Falsifying records or making false statements results in a $10,000 fine or up to 6 months jail or both. Assaulting a compliance officer or otherwise resisting, opposing, intimidating, or interfering with a compliance officer in the performance of his or her duties is a criminal offense and is subject to a fine of no more than $5000 and imprisonment for no more than 3 years. Certain notable violations for general industry in California for 2012-2013 can be found at http://www.dir.ca.gov/dosh/citation.html.

Ref: Material above has been adopted from OSHA Inspections Document published by DOL. Additional reading for Cal/OSHA inspections is found at https://www.dir.ca.gov/DOSHPol/P&PC-1A.HTM.

Sam Celly has advised auto dealers regarding EPA/OSHA compliance in 9 western states since 1987. Sam got his Bachelors of Chemical Engineering degree in 1984 followed by MS in Chemical Engineering (School of Mines & Technology) in 1986. In 1997, he received his Doctorate of Jurisprudence from Southwestern University in Los Angeles with emphasis on Labor & Environmental Law. Sam is a Certified Safety Professional and has served as the Chair of the Law Committee and Environmental Issues Committee of the American Industrial Hygiene Association (AIHA). Additionally, he is a member of American Institute of Chemical Engineers (1985) and the AIHA, where he is the President of the Southern California Section. Send your comments to sam@cellyservices.com