In the past few months, the Occupational Safety and Health Administration (OSHA) has amended several of its standards, including those dealing with respiratory protection, confined space entry, and forklift operator training. Also, OSHA has issued a proposed standard which, if adopted, will require employers to develop written safety and health programs. Recent changes like these are expected to result in an increase in the number and frequency of inspections conducted by OSHA in the Carolinas.
For employers that have never been inspected by OSHA, as well as employers whose experience with OSHA is limited, the prospect of an OSHA compliance inspection can be frightening. Such employers frequently ask how they can prepare for, as well as what to expect during, an OSHA inspection. In this Legal Alert Memorandum, we answer the most frequently asked questions about OSHA inspections.
"Why did the OSHA inspector choose my business?"
There are four types of compliance inspections each conducted for a different reason:
- The Complaint Inspection -- occurs after an employee files a formal complaint with OSHA. This is the most common type of inspection.
- The Fatality/Accidents Inspection -- occurs after OSHA receives notice from the employer of a workplace fatality or an accident resulting in the hospitalization of three or more employees. OSHA also takes notice of media reports, and will frequently investigate accidents that do not result in any fatalities or hospitalizations.
- The Programmed Inspection -- an inspection conducted of randomly chosen workplaces determined to be engaged in particularly hazardous types of work according to their Standard Industry Classification (SIC) Codes.
- The Imminent Danger Inspection -- occurs when OSHA receives a report that a condition of imminent danger exists at a workplace. This is the least common type of inspection.
When an OSHA inspector attempts to enter an employer's facility to conduct an inspection, the employer should ask the inspector what caused the visit. After determining the type of the inspection, the employer can better decide whether to grant the inspector access to the worksite.
"What is the best way to prepare for an OSHA inspection?"
The best way to prepare for an OSHA inspection is to conduct a self-analysis of the employer's safety practices, safety manual, and safety training programs. To do a self-analysis, an employer must have some knowledge of federal and state safety and health requirements. This knowledge can be obtained by hiring a safety manager familiar with OSHA requirements, or by training existing personnel. Training is available through private safety consultants as well as through OSHA.
Employers also should take the following steps to prepare for an OSHA inspection:
- Post the required OSHA poster in a conspicuous place where all employees are most likely to see it.
- Record all work-related illnesses and all qualifying injuries on the OSHA 300 log and have corresponding OSHA 301 forms (or their equivalent) handy.
- Implement a discipline policy that provides for documenting employee violations of company safety rules (e.g., failure to wear ear plugs in areas where the employer requires hearing protection) in employee files.
- Designate and train one or more members of management to deal with OSHA inspections.
- Instruct the receptionist to notify the appropriate officials as soon as an OSHA inspector arrives.
"Do I have to let the inspector in?"
When an inspector appears at a workplace ready to open an inspection, the employer does not have to let the inspector proceed unless the inspector has a warrant (an administrative warrant, not a criminal warrant). Neither North nor South Carolina OSHA routinely obtain warrants in advance of an inspection unless OSHA has reason to believe that the business will refuse entry - for example, if entry was refused for a prior inspection. If an employer has not refused access to an inspector in the past, it likely will not be met with a warrant upon the inspector's arrival.
In deciding whether to let the inspector in without a warrant, employers should consider several factors. One factor influencing the decision will be the reason for the inspection. Several businesses across the Carolinas refuse entry to inspectors attempting to conduct a programmed inspection without a warrant as a matter of policy. Most employers, however, will allow inspections prompted by complaints, fatalities, or accidents to proceed without a warrant.
If the employer refuses access, OSHA must decide whether to seek an administrative warrant. As a general rule, if the inspector is able to confirm that the employer is engaged in work that has been identified as highly hazardous by OSHA's planning guide, OSHA will pursue the warrant. In addition, OSHA will almost always seek a warrant to investigate complaints, fatalities, catastrophes, and imminent danger. The warrant process can take as little as a couple of days or as long as a week. In some cases, an employer may desire the extra time to review its compliance with OSHA regulations.
"How does a typical inspection proceed?"
Before beginning the actual inspection, the inspector will hold a brief opening conference, in which he will explain why he is there and what he intends to do. If the impetus for the inspection was a complaint, the inspector will give the employer a copy of the complaint after receiving permission to proceed with the inspection. If a programmed inspection is to be conducted, the inspector should ask the employer to provide its SIC Code or to describe the nature of the employer's business. An employer should always confirm that the SIC code the inspector is authorized to inspect (under the state's Planning Guide) matches the employer's actual SIC code.
At the conclusion of the opening conference, the inspector will proceed to the "walkaround" phase of the inspection. In a programmed inspection, the inspector will want to see all aspects of the employer's operations on the plant floor. In addition, the inspector will be interested in observing the loading and unloading of raw materials, as these activities frequently involve a high risk of exposure. The inspector will take photographs or video tape to document either the presence of what the inspector believes to be a violation or the absence of a violation or condition referenced in a formal employee complaint. The inspector likely will take measurements and may conduct air monitoring.
As the inspector proceeds through the workplace, he will conduct employee interviews, usually "over-the-shoulder," unless workplace conditions require otherwise. The inspector will ask about the employee's job duties, level of training, and knowledge and recognition of hazards he faces. Inspectors are trained to interview approximately 10% of the employees, including at least one from each area of the operation. Management may not attend these interviews unless the employee requests management's presence.
After getting a feel for the employer's operations, the inspector will want to examine various records, such as OSHA 200 logs for at least the past three years, OSHA 101 forms, and written programs. The inspector is generally entitled to examine any document or program that OSHA regulations require, as long as the documents are within the scope of the inspection. Nevertheless, the inspector is not entitled to examine documents that other regulatory agencies require, such as EPA's SARA logs.
After conducting the walkaround, employee interviews, and records review, the inspector may conduct a closing conference to inform the employer of violations he noted and for which he expects to propose citations. If the inspector feels that air monitoring is necessary, he will arrange to conduct full shift sampling before the closing conference.
"Once I let the inspector in, is he free to see anything he wants?"
An employer can place certain conditions on its consent to an inspection. For instance, an employer concerned about protecting trade secrets can enter into a Trade Secret Agreement with the inspector. This protects photographs and documents from release to the public under the Freedom of Information Act after the inspector's report has been filed. After OSHA has completed its investigation and has closed its file, the employer must keep all photographs, video, and documents covered by the Trade Secret Agreement and make them available to OSHA upon request.
In South Carolina, every inspector is issued a video camera to document workplace conditions. The inspectors generally do not randomly record, as though they were "making a movie" of the entire visit. In addition, each video camera is equipped with a screen that enables the employer to see exactly what the inspector sees during filming. In North Carolina, inspectors most frequently use 35 mm cameras to document workplace conditions, although they may use digital cameras or video cameras in some cases. If the inspector intends to use a 35 mm camera, he may agree to allow the employer to take Polaroid photographs, as long as the employer gives the inspector the photos.
Unprogrammed inspections, such as those caused by complaints and fatalities, are almost always limited to the circumstances surrounding the specific areas complained about or the death of the employee. Occasionally, an inspector conducting a complaint inspection determines that sufficient hazards exist outside of the area complained about to warrant expanding the scope of the inspection. However, the inspector must receive permission from his superiors before expanding the scope of a complaint or fatality inspection.
"What happens if I don't agree with the results of the inspection?"
After the inspector submits his report, OSHA will issue citations and impose fines and abatement dates for each violation. There are several types of citations:
- Serious - which almost always carry a monetary penalty, with a maximum of $7000
- Other-than-Serious - which generally do not have a fine attached
- Regulatory -- for violations involving OSHA 200 logs and 101 forms, or for failure to post the OSHA poster
- Failure to Abate
- Willful -- which can carry a fine of up to $70,000
If the employer does not agree with the citation, or objects to the fine or the abatement date, it has 15 days from the receipt of the citations to contact the area office to protest.
An employer may be tempted to accept the citations in exchange for a reduction in penalty, a settlement almost always proposed by OSHA. This settlement, however, may not be in an employer's best interests. Although the monetary penalties may be reduced, there usually is a down-side for the employer. Often, the employer must agree to implement expensive engineering controls, which OSHA standards may not require, in order to lower the fine. In addition, a reduction of the fine does not necessarily mean that the citation itself, or its abatement requirement, has been vacated. The employer may still be responsible for any corrections that the inspector thinks are required, or else face citations for repeat violations.
In some cases, where very minor violations are involved, it may be prudent for the employer to accept the citation and pay the fine. In other cases, even a citation for an other-than serious violation, which generally carries no monetary penalty, is worth protesting. This is particularly true when the employer's safety record is a key to remaining competitive in a tight market.
In conclusion, employers across the Carolinas should make OSHA compliance a top priority and ensure that their programs and required documents are accurate, complete, and up-to-date. In addition, employers should routinely inspect their facilities to evaluate all safety and health issues. Finally, employers should devise a comprehensive plan to deal with an OSHA inspection, because each employer engaged in general industry, construction, or agriculture will likely be inspected at least once during the lifetime of the business.
***Courtesy of David Dubberly of Nexsen Pruet***