In sports talk, it’s said that “a good defense is the best offense,” and so it goes when it comes to matters of dealing with the Occupational Safety and Health Administration (OSHA), whether state or federal. It can be pretty scary when an OSHA compliance officer shows up unexpectedly, but let’s face it: Most OSHA inspections come courtesy of an employee, or employees, lodging a complaint about something at work. The best antidote for this is having a good rapport and mutual trust with your staff, which is no doubt also the best defense against OSHA visitations. If your employees respect you and your intentions, they’ll likely inform you of the problem, or incident, before picking up the phone for outside help.
The stakes are getting higher all the time should your firm be found in violation of an OSHA rule or standard. Since Congress passed its 2015 budget bill, federal agencies, including OSHA, have been green-lighted to raise their financial penalties to match inflation. So what was once a fine of $7,000 is now some 80 percent higher at $12,943, and that’s for each violation your company is cited for. If you’re a willful or repeat offender in the eyes of the agency, you could be socked $129,336 for each violation.
According to OSHA statistics, the largest fine ever imposed totaled $81,340,000 in 2009 to BP Product North America for “failure to correct potential hazards faced by employees.” The same company was also the recipient of the second largest fine of $21,361,500 four years earlier. Even the 25th-place recipient, Union Carbide, was docked $2,803,500 way back in 1991. And these fines were all levied before the 2015 inflation adjustment kicked in.
Please note that the information being presented here covers Federal OSHA. Twenty-six states, Puerto Rico and the Virgin Islands operate under OSHA-Approved State Plans, of which 22 cover private businesses as well as state and local governments. The other six monitor only government entities. All 28 of them may operate differently in procedural matters, and some may even have higher standards than the federal agency, but all are expected to maintain standards and fines at least parallel to the federal level.
That being said, what is the best strategy for surviving an OSHA inspection?
First and foremost, have a plan – a detailed safety plan for your workplace. This plan should include not only training for both managers and employees but also written policies and rules, all backed up by physical walk-throughs to assess hazards and potential areas of concern. The plan needs to be an ongoing effort, not just a printed document stored away in case an OSHA inspector shows up (though that would certainly be helpful as well). As we’ll discuss later on, OSHA will actually help you formulate your plan.
What to Expect from a Federal OSHA Visit
Not only should you plan to prevent accidents, but you should also plan on what to do and expect in the event of an official visit. Here are some realities of OSHA inspections to help you prepare:
- As mentioned, OSHA inspections generally are motivated by an internal complaint about a situation or safety factor that is relayed to the local OSHA office. Even if your employees generally love you, it takes only one employee to make life miserable for you on the health and safety front.
- OSHA inspectors don’t need an appointment. They can just show up. Many times, depending on the nature of the complaint, they may conduct a phone interview. If that is satisfactory, you might avoid a visitation entirely. And if they do shop up, remember that you as an employer have the right to request that a compliance officer obtain an inspection warrant before entering the premises.
- As just noted, OSHA may start with a phone interview and follow that up with a written request for details. If so, you will be given five business days to respond. Make sure you do. Don’t give them a reason to think you’re hiding something. The compliance officer might also want to audit injury logs, training records, perhaps personnel files as well.
- OSHA compliance officers generally try to make the process as open and transparent as possible. They usually start by holding an opening conference, depending on the size of the company and nature of the inspection. Be cooperative and non-combative during every step of the process. If they ask you to line up employees for interviews, do so willingly.
- The inspector will definitely do a walk-through of your facility, which could stretch out over days or weeks depending on the size of your operation. Make sure you or a representative tags along and takes notes.
- When the officer finishes his inspection and investigation, he will hold a closing conference with the requisite company individuals, again depending on the size of the business and the nature of the investigation. This person will discuss findings, review any violations, recommend courses of action, and finally announce any potential fines. OSHA, however, has six months after the violation’s occurrence to levy financial penalties, so they may be announced later on.
- If you disagree with any part of the settlement, you have 15 working days to make your case in writing to the OSHA area director; your pleading will then be reviewed by the Occupational Safety and Health Review Commission. Depending on the outcome, you may be visited again. Though fines can be hefty, the goal of the agency is to ensure American businesses put safety and health first, so you can work with them on a reasonable basis.
On final word of advice: If you are facing an OSHA inspection, you should consult with legal counsel before, during and after the process. You don’t want to “open mouth and insert foot,” so to speak.
‘Worst First’
It’s also important to understand how OSHA prioritizes. Generally, when it comes to inspections, OSHA looks at “worst first” – any situation that involves “imminent danger” that could cause death or serious injury takes precedence. From highest to lowest, OSHA organizes around these priorities:
- Catastrophes and fatal accidents: Any employee death, or the hospitalization of three or more employees.
- Employee complaints about feeling in “imminent danger” of physical harm.
- High-hazard industries as identified by OSHA: Those establishments with lost workday rates at or above the most recently published Bureau of Labor Statistics (BLS) national rates.
- Follow-up inspections to ensure abatement.
Prior to any of the above bringing an inspector to your place of business, OSHA is willing to help you abate any workplace threats and keep your employees safe and healthy. The agency operates several such cooperative programs: The Alliance Program; OSHA Strategic Partnership Program (OSPP): Voluntary Protection Programs (VPP); OSHA Challenge program; and SHARP (Safety and Health Achievement Recognition Program. How do they differ?
Through the Alliance Program, OSHA works with groups committed to worker safety and health to prevent workplace fatalities, injuries, and illnesses. OSHA and the groups work together to develop compliance assistance tools and resources, share information with workers and employers, and educate workers and employers about their rights and responsibilities.
The OSHA Strategic Partnership Program (OSPP) provides the opportunity for OSHA to partner with employers, workers, professional or trade associations, labor organizations, and/or other interested stakeholders. Each OSHA Strategic Partnership establishes specific goals, strategies, and performance measures to improve worker safety and health.
The Voluntary Protection Programs (VPP) recognize employers and workers in the private industry and federal agencies who have implemented effective safety and health management systems and maintain injury and illness rates below national Bureau of Labor Statistics averages for their respective industries.
OSHA Challenge provides interested employers and workers the opportunity to gain assistance in improving their safety and health management systems. Challenge Administrators experienced in safety and health guide Challenge Participants through a three-stage process to implement an effective system to prevent fatalities, injuries, and illnesses.
Employers that have a full On-site Consultation visit and meet other requirements may be recognized under SHARP for their exemplary safety and health management systems. Worksites that receive SHARP recognition are exempt from programmed inspections during the period that the SHARP certification is valid.
What’s Expected of You
Myriad are the standards and regulations that OSHA has promulgated over the decades. Many of them may possess no relevance to your business unless it is in a high-hazard industry. Nonetheless, it is your responsibility to acquaint yourself with any rule or guidance that applies to your operation and adhere to it. Reaching out to OSHA through one of the above programs, or working with third-party instructors or consultants, can in the long run save you tons of time and money, while insuring your compliance with OSHA safety and health expectations. Here are some of the more relevant standards and regulations:
All businesses with 10 or more employees, unless they are in an exempt industry as defined by OSHA, must maintain injury and illness logs. And no matter the size of their business, employers must report any incident that leads to a fatality or to the hospitalization of three or more employees (at which point you can pretty much count on being inspected).
In addition, some businesses must provide personal protective equipment (PPE) for their employees – helmets, goggles, work shoes, gloves and the like. If your business uses any substance contained in OSHA’s hazardous chemical list, then you must develop a written hazard communication program.
If you have equipment at work that has stored energy that can be released during operation, you must conduct formal training and have in place written instructions for lock-out/tag-out procedures to prevent inadvertent or unauthorized use of the equipment.
If your business generates a high noise level from equipment, you are required to develop and implement a hearing conservation program, including work area noise level testing, annual personnel hearting tests, employee training and hearing protection provisions in general.
There are many other standards as well, and then there is OSHA’s General Duty Clause, which is kind of a catch-all where they can find you in violation for safety or health issues under the category of “you should’ve known better.” Section 5(a) of the Occupational Safety and Health Act (OSH Act) of 1970 states: “Each employer (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (2) shall comply with occupational safety and health standards promulgated under this Act.”
Take the Initiative
Federal OSHA conducts about 50,000 workplace inspections each year, meaning your odds of being inspected are less than 1 percent, but that is no reason to be complacent or have a “What, me worry?” attitude. Your business can easily fall into the 1 percent trap if you take matters too lightly. Accidents do happen, and disgruntled employees do try to get even.
The best offense being a good defense, the more proactive you are with your employees and with OSHA, the better off you’ll be in maintaining a safe, healthy and happy workplace. Stave off the specter of an OSHA inspection by making sure you’re on top of everything safety- and health-wise as a business. Train regularly, keep up-to-date written policies in place, and conduct periodic walk-through inspections, and you’ll enjoy peace of mind on the inspection front. But be mindful never to take things for granted. Compliance is a nonstop challenge.
NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.