Dec 5, 2018

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In this episode, I will talk about preparing for an OSHA inspection and how to best handle the event should one occur. Here, my focus will be what to do up-front, and should a compliance safety and health officer (CSHO) arrive at your facility, what to expect and what you should have ready to make it go smoother.

I will also talk briefly about how to handle any alleged violation and potential citations that come your way.

Let’s first get some definitions out of the way:

I already mentioned the CSHO (Compliance Safety and Health Officer): This is the federal OSHA employee who conducts inspections for the agency — a.k.a. “OSHA Inspector.”

General Duty Clause (GDC): A section of the OSH Act — Section 5(a)(1) — that requires employers to protect employees from recognized, serious hazards, regardless of whether there is a specific standard addressing that hazard. OSHA often uses the GDC to cite employers for not protecting workers from ergonomic-type risks, workplace violence, and heat stress.

OSHA: The Occupational Safety and Health Administration — the federal agency that sets and enforces worker safety and health laws.

OSH Act: The Occupational Safety and Health Act of 1970, which is the enabling legislation for OSHA. 

Repeat violation: A hazardous/violative condition that is the same or similar to a previously cited condition in the past five years at either the same establishment or another establishment of the same company under federal OSHA jurisdiction.

Serious violation: A violation where there is a substantial probability that death or serious physical harm could result, and the employer knew or should have known of the hazard.

Willful violation: A violation that the employer intentionally and knowingly commits.
Now let’s get into the arrival and inspection process and how to best handle these and ultimately what you can do to prepare your company better.

Understand that OSHA has the right to inspect places of work. A question I get more often than I am comfortable with is whether or not you can require OSHA to come back with a warrant. Yes, employers may exercise their Constitutional rights to request a warrant; however, there is a relatively low threshold for OSHA to obtain such approval - so this is not advised in many cases and will not show your willingness to cooperate. Instead, use your right to an opening conference upon their arrival.

Pro Tip: When the compliance officer arrives, avoid showing a negative attitude. Creating a wrong first impression could set up your facility for failure, so practice having a positive attitude towards the compliance officer. Being polite can put the inspector at ease and create a positive environment—you might even enjoy the inspection.

Know the reasons that prompt most inspections. Inspections can be triggered in a variety of ways, such as reports of serious injuries, complaints, targeting/emphasis programs, and plain-view hazards. They are seldom at random.

Note that some smaller workplaces in low-hazard industries may be exempt from certain types of inspections. See CPL 02-00-051-Enforcement exemptions and limitations under the Appropriations Act.

Know the phases of an OSHA inspection. Inspections will consist of an opening conference, records review, walkthrough inspection, and closing conference. Citations will not be issued during the inspection; those come later from the Area Office director.

Verify CSHO’s credentials. Always ask to see the CSHO credentials upon arrival. You can also contact the area office to verify their identity if needed.

Get a clear understanding of the proposed scope of an inspection. CSHO’s should generally stick to that scope. This means, what do they want to see? A specific process, part of the facility, program review, etc. Which tells you exactly how to narrow the visit - where to take them and where NOT to take them!

Have documents ready. The OSHA Compliance Officer will look for documentation including but not limited to injury and illness records, written safety plans, past inspections, training, exposures, and other safety-related documents. You should maintain, review, and keep documents in a place where you or an assigned supervisor can easily find and present them to the officer. Remember that OSHA could show up at any time. They'll usually arrive during business hours, but an inspection prompted by a severe workplace injury during third shift could mean a knock at the door in the middle of the night.

Pro Tip: A note about self-audits or inspections; OSHA has never officially stated that they will not use self-audits. However, in a final policy published in the Federal Register (65:46498-46503), OSHA noted that the Agency will not “routinely” request to see self-audit reports at the initiation of an inspection, and the Agency will not use self-audit reports as a means of identifying hazards upon which to focus during an inspection.

OSHA has also stated that where a voluntary self-audit identifies a hazardous condition, and the employer has corrected the condition prior to the inspection and taken appropriate steps to prevent recurrence, the Agency will refrain from issuing a citation, even if the violative condition existed within the six months limitations period during which OSHA is authorized to issue citations.

Keep in mind, OSHA has the right to take photographs during inspections. It is a good idea for employers to duplicate this effort. Employers must also remember that OSHA does have the right to photograph in confidential areas; in instances where there are trade secrets, OSHA has special privacy procedures to follow concerning maintaining the case file documentation.

As for videos, the same rules apply here as well. I remember during one fatality I was investigating; the CHSO informed me of his intent to videotape and he showed me the camera, how he would turn it on, the light indicating it was on, etc. He even told me that he would NOT record me or ask me any questions during the recording. It was merely to capture the worksite and equipment that was involved in the fatality. He made it a point to ensure I was comfortable - he even dispelled the myth that CHSOs would pretend they turned the camera off but kept secretly recording to gain evidence. That is NOT how they operate. I was there alone without an attorney, walking through a site where a 20-year employee of the company was killed - a sensitive and emotional time. CHSOs are highly trained, and more importantly, they are also human; they have empathy like anyone else. I was so impressed by the CHSO I have stayed in touch with him since then, and we have collaborated on Q&A from time to time.

Always correct hazards. Although you might not undergo an inspection, correcting daily hazards can prepare you for an unexpected visit. I have said it for years, your number one strategy for dealing with an OSHA inspection is three words: BE. IN. COMPLIANCE.

You'll have less reason to fear an OSHA inspection if you conduct self-inspections, looking for missing machine guards, blocked fire exits, unkept working areas, and fall hazards. Preparing your workplace for a compliance officer will depend on your ability to identify and correct known hazards consistently.

For each alleged violation found during the inspection, the compliance officer has discussed or will discuss the following with you: 

• Nature of the violation
• Possible abatement measures you may take to correct the violative condition
• ƒPossible abatement dates you may be required to meet 
• ƒAny penalties that the area director may issue

Do not interfere with employee interviews. Under the OSH Act, OSHA has the right to question employees privately. Supervisors, however, do have the right to legal counsel. Be careful that you do not appear to be coaching or intimidating the CHSO.

I always held a brief meeting with all employees with the CHSO present to introduce them and explain that the only expectation the company has is that the employees, should they be interviewed, are to be cooperative and professional and that their conversation is kept private and confidential. 

OSHA has six months from learning of a hazard to issue citations. Only the Area Director can issue citations. Once you get it, it will be certified mail, and the clock starts ticking at that point. I will explain it.

Post OSHA citations for three days or until the violation is corrected, whichever is longer. The citation must remain posted in a place where employees can see it, for three working days or until the violation is corrected, whichever is longer. (Saturdays, Sundays, and Federal holidays are not counted as working days.)

Pro Tip: Post it as close to the violation location as possible - in some cases, a public location will be acceptable. Like a bulletin board or inside a job trailer.

Exercise your right to an informal conference to discuss proposed citations. Employers may also contest citations before an independent review commission. Which has to be requested ASAP! I always tell employers, even if you are going to agree with the citations, always ask for the informal conference.

It is an excellent opportunity to show to OSHA that you are committed to improving workplace safety and can even negotiate an informal settlement agreement - which will always have some training requirements attached, so be prepared to invest in time and resources and not just expect to smile and get a good neighbor discount.

Pro Tip: The Area Director is authorized to reduce proposed penalties by up to 50% with an informal settlement agreement. I have negotiated many of these and even had some proposed citations vacated during these conferences after bringing evidence and arguing an interpretation of the standard - risky but we were right so it made sense to do it at the time.

Remember there are only 15-working days to file a proper notice of contest. This must be in writing. Which is why it is critical to get the informal conference going right away!

Do not retaliate against any worker for exercising their rights under the law. This is key - and if employee violations of company rules are at play, always ask OSHA about the retaliation rules if in doubt. But this may be needed as a result of any investigations.  

A pro Tip: Simulate inspections…

The best way to train is to simulate an inspection. Before an OSHA Compliance Officer visit, practice the procedures that will be taken when the officer arrives. Insurance underwriters can offer some assistance here - think about it, they will often inspect workplaces as a part of their coverage policy, so why not communicate to staff/employees that this is also a mock audit?

Ask the insurance rep for their agenda and add some activities that the CHSO may conduct. This might include, but not be limited to:

• Instructing your front office personnel to practice greeting a
• compliance officer in a polite manner.
• Training staff to answer questions concisely.
• Conducting mock interviews with employees.
• Practicing what you'll discuss during the opening and closing conferences.

Chances are, an inspection will go smoothly if you prepare your facility by having documents ready, correcting hazards before the visit, and simulating the inspection. 

Taking these precautions won't eliminate the possibility of a citation, but the compliance officer might view your effort as "good faith," making it easier to manage any hiccups during the inspection, so put your fears to rest and prepare, prepare, prepare!

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