October 1, 2013
Over the past year, federal and state occupational safety and health agencies have increased their enforcement activities, and the Protecting America’s Workers Act—which would significantly increase civil and criminal penalties for violations of the Occupational Safety and Health Act—is pending in Congress. These developments mean it is more important than ever that employers understand and exercise their rights during an occupational safety and health inspection and be familiar with the citation process. This article provides practical suggestions on what to do before and after an inspection.
Types of Inspections
The S.C. Occupational Safety and Health Administration (OSHA) inspects most businesses in South Carolina for compliance with federal and state occupational safety and health requirements. (OSHA has jurisdiction over all private sector worksites in South Carolina with the exception of those located at maritime, railroad, mining, or federal facilities; worksites at those facilities are subject to inspection by the federal occupational safety and health agency.) OSHA conducts five general types of compliance inspections:
- A complaint inspection occurs when an employee (often a recently fired or injured employee) complains of an allegedly unsafe or unhealthy working condition. Complaints may also come from fire departments or other government agencies.
- An imminent danger inspection occurs when OSHA believes that a condition exists that could cause death or serious physical harm immediately or before the danger can be eliminated through the normal inspection assignment process. South Carolina compliance officers are trained to conduct immediate inspections of excavations or scaffolds observed from public rights of way.
- A fatal accident or catastrophe inspection occurs when an employer notifies OSHA of a workplace fatality or an accident resulting in the hospitalization of three or more employees. Fatalities and catastrophic accidents must be reported to OSHA within 24 hours. OSHA also takes notice of news reports and often investigates accidents that receive publicity in the media even if the incidents do not result in fatalities or hospitalizations.
- A follow-up inspection occurs to verify that conditions have been abated after a citation was issued for imminent danger, willful violations, failure to abate, or repeat violations. A follow-up inspection may occur after a citation has been issued for a serious violation and, under some circumstances, for a non-serious violation.
- A programmed inspection is one that is conducted of randomly chosen workplaces in industries that have a higher-than-average accident rate. OSHA uses Standard Industry Classification (SIC) codes to track employee injury and illness rates. Industries with higher-than-average accident rates are then targeted for inspection. In South Carolina, most inspections are programmed inspections.
When an OSHA inspector arrives at the worksite, the employer can ask what triggered the inspection. Knowing the type of inspection can help the employer decide how to handle it.
A good way to prepare for an OSHA inspection is to conduct a self-audit of facilities and operations. To do this, the employer must become knowledgeable about applicable OSHA standards and procedures. The employer can acquire such knowledge by hiring a safety manager familiar with OSHA requirements or by training existing personnel.
Employers also should take the following steps to comply with OSHA requirements and to be prepared for an OSHA inspection:
- Display the official OSHA poster, titled “Safety and Health Protection on the Job,” in a conspicuous place where employees are likely to see it.
- Complete OSHA injury and illness logs and keep them in an easily accessible location.
- Determine which OSHA standards and regulations apply to the worksite; implement safety practices and training programs; and make sure all required documentation is up to date and in good order.
- Implement a safety policy that provides for documenting employee violations of company safety rules and disciplining employees for violations.
- Assign responsibility for safety and health compliance to a member of management, and create a safety team to deal with significant accidents and related publicity.
- Instruct the receptionist to notify the management official responsible for safety and health compliance immediately upon arrival of an OSHA inspector.
Stages of an Inspection
Initial Contact. When an inspector arrives at a workplace ready to open an inspection, he or she will present agency credentials, including a photo ID. Employers are encouraged to call OSHA if there is any reason to suspect the visit is not an official inspection.
The employer does not have to let the inspector proceed unless the inspector has an administrative warrant. (There is an exception to this rule: worksites that can be viewed from a public area can be inspected without a warrant.) OSHA does not routinely obtain warrants in advance of an inspection.
If in doubt about whether to allow an inspection to proceed, the employer can ask the inspector to wait in a conference room while it consults with legal counsel. If the employer refuses access, OSHA will almost always try to obtain a warrant from a state circuit court judge. This is not difficult, as warrants are normally issued on an ex parte basis (without input from the employer).
An employer considering denying entry to an inspector who does not have a warrant must weigh the potential benefits of this denial against the likelihood that when the inspector returns with the warrant, he or she will carry out a more rigorous inspection.
Opening Conference. The inspector will begin by holding an “opening conference” with the employer’s representatives (and, in some cases, an employee representative). During this conference, the inspector will explain the purpose, scope, and circumstances of the inspection. If the impetus for the inspection was a complaint, the inspector will give the employer a copy of the complaint. If a programmed inspection is to be conducted, the employer should confirm that its SIC code matches the SIC code the inspector is authorized to inspect. This opening conference provides an opportunity for the employer and the inspector to discuss the focus and scope of the inspection, any trade secret areas, and the procedure for conducting employee interviews and producing documents.
Establishment Inspection. Next comes the “walk around” inspection of work areas, during which the inspector seeks to determine if the employer is in compliance with specific standards as well as with the general duty requirement to provide a safe and healthy work environment. In a complaint or accident inspection, the inspector may focus on only part of the employer’s facility. In a programmed inspection, the inspector will likely want to see all aspects of the operations. The employer’s representative should accompany the inspector at all times, taking notes on what the inspector observes and says. Additionally, if the inspector takes a picture of something, the employer will want to take a picture of the same thing, from several angles if possible. If the inspector is using a video camera, the employer will want to use one, too. If the inspector measures or diagrams something, the employer will want to do the same.
- Inspection of Records. The inspector will ask to review various records, such as OSHA 300 logs, OSHA 301 or worker’s compensation first report of injury forms, written programs, and training records. He or she will also check on whether the OSHA poster is displayed. The inspector is generally entitled to examine any record or program that OSHA regulates.
- Employee Interviews. As the inspector proceeds through the workplace, he or she will conduct “over the shoulder” interviews of employees. The inspector will ask employees about their job duties, training, and knowledge and recognition of potential hazards. Inspectors are supposed to schedule lengthier interviews at a time and under circumstances that will not interfere with the employees’ duties or the employer’s operations.
Closing Conference. At the conclusion of the inspection, the inspector will hold a “closing conference” to inform the employer of violations he or she noted and of suggested abatement procedures. The inspector will inform the employer of the citation process and provide an estimate of when the employer may hear further from OSHA.
After the inspector submits a report, OSHA will issue citations and impose fines and abatement dates for each alleged violation. Fines are determined based on the seriousness of the alleged hazard:
- “Serious” citations can result in penalties of up to $7,000.
- “Repeat” and “willful” citations can carry fines of up to $70,000.
- “Failure to abate” citations can result in penalties of up to $7,000 for each day the alleged violation is not corrected, up to 30 days.
Penalties are adjusted for the employer’s size, compliance history, and willingness to implement internal programs and procedures to achieve compliance with OSHA standards.
If the employer does not agree with a citation, or objects to the fine or the abatement date, it has 30 days from receipt of the citation to request a contested case hearing before the Administrative Law Court. South Carolina’s OSHA regulations also provide for informal settlement conferences to resolve citations; however, requesting and having an informal conference does not postpone the 30-day period for seeking a contested case procedure. The informal conference system is often a cost-effective method by which to resolve issues such as the amount of a fine or the length of time set for abatement. If a citation cannot be resolved informally, it is critical that the employer request a contested case within the 30-day period.
Employers should make OSHA compliance a top priority and ensure that their programs and required documents are accurate, complete, and up-to-date.
This article first appeared in the Columbia Regional Business Report in the fall of 2010.