What Do You Do When OSHA Is Knocking At The Door?

OSHA is focusing less on consultative assistance & more on enforcement action. This means citations are going up, penalties are going up, the potential for criminal charges are going up, with those responsible for ensuring workplace safety as the target!

First, I want to say that I am not an attorney and this is not legal advice. I am only sharing my understanding and experience with OSHA Inspections. I do strongly recommend that an employer seek experienced legal counsel anytime you have communications from OSHA. An OSHA Inspection is not a matter to take lightly and the possible repercussions can be extensive.

There are two general categories of inspections: programmed and non-programmed.
1) Establishments with high injury rates receive programmed inspections.
2) Non-programmed inspections are used in response to fatalities, catastrophes, and complaints.

Inspections normally occur without any advance notice. In fact, in most Non-Programmed Inspections, it is a Federal offense for someone to notify you in advance. There are OSHA publications and documents that detail the policies and procedures for inspections, including OSHA’s Field Operations Manual (FOM).

At an Inspection, the OSHA Compliance Officer (or Inspector) will normally arrive during regular working hours and will present their credentials (you should always ask if they don’t). An employer can call local OSHA office to verify that this is an OSHA inspection.

The Inspector will usually request to see the owner or “person in charge”. The OSHA officer does not need a warrant, but they must have your consent to enter and inspect your premises. But if you refuse entry, the Inspector will return to the area director where it will determined if a warrant should be sought. If they want to inspect your place, they will get in eventually.

In today’s world, you should expect that the OSHA Inspector will be very much enforcement-driven. They are not there to consult with you or to help. They are there to find violations and write citations. OSHA does have a consultative branch that exists to help employers, but inspections are done by the enforcement branch.

The time to prepare for an OSHA inspection is NOT when they come knocking at the door. NOW is the time to get ready, and there are some simple steps you can take to be prepared. These steps include:
• Knowing which OSHA Standards apply to your business and making sure you are in compliance.
• Ensuring your OSHA 300 (injury report) forms are up to date and posted according to OSHA rules.
• Having a qualified employee assigned as your Safety Manager.
• Training supervisors and managers in OSHA inspection basics.
• Developing an OSHA Inspection Plan.

A typical OSHA Inspection consists of four phases:
1. Opening conference
2. Records review
3. Facility walk-through inspection
4. Closing conference

In the Opening Conference, the Inspector will explain how your company was selected and will likely explain the scope and purpose of inspection. If there was a complaint, they will normally provide a copy but will usually not reveal the name of the complainant. The Inspector will ask for an employer representative to accompany him or her during the inspection, and will ask for an authorized employee representative to accompany as well. This might be a union representative or it can be just about any representative the employees choose. There have been some recent cases concerning who can be an employee representative, and it appears to me that it boils down to the Inspector’s discretion.

The OSHA Inspector will also determine if an OSHA consultation is currently in progress, and will take action as follows:
• If this is a Programmed Inspection, the consultation visit has priority and the Inspector will leave.
• If this is a Non-Programmed Inspection, the inspection has priority and the consultation will end.

The second phase is the Records Review. During this phase, the Inspector will review the following:
• OsHA 300, 301, and 300-A.
o At least 3 years back, but you must have 5 years on file
• “OSHA Poster”
• A written PPE Hazard Assessment (essential!)
• Safety Data Sheets (SDS)
• Your Written Programs
o These must be current and reflect your actual operations.
o A “canned” program that just sits on the shelf will not work!
• Training Records.
• Exposure & Medical Records, Confined Space Permits, Lockout/Tagout Records.
• Emergency Evacuation Drills.
• Posting of the OSHA 300A Injury and Illness Summary (2/1 – 4/30).
o Must be posted from February 1 to April 30, even if there were no recordable inuries.

It’s important to ensure your records are complete and up to date. Again, the time to do this is NOW, not during an Inspection.

An OSHA Inspection can be a very stressful event, but it need not be. If you would like to learn more about OSHA Inspections, I lead Audio Conferences on How to Survive an OSHA Inspection (“OSHA Citations Are Rising: Best Practices For Avoiding A Citation At Your Organization”) a few times each year. My next session is on May 5, 2015. You can view details and register at:
http://www.theindustrycalendar.com/showWCDetails.asp?TCID=1015034&RID=1011610

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