OSHA Inspections

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1. Slide 1

   OSHA Inspections

2. Slide 2

   Overview

   • OSHA
   • Inspection
   • OSHA
   • Penalties
   • Responding to OSHA
3. Slide 3

   OSHA Inspections

   • Notice of Inspections
   • OSHA generally conducts inspections without advance notice. In fact, anyone who alerts an employer in advance of an OSHA inspection can receive a criminal fine of up to $1,000, or a six-month jail term or both.
   • Under special circumstances, OSHA may give the employer advance notice of an inspection—but no more than
   • 24 hours.
4. Slide 4

   OSHA Inspections

   • Notice of Inspections
   • Advance Notice: Special Circumstances
   • Imminent danger situations, which require correction immediately.
   • Inspections that must take place after regular business hours, or require special preparation.
   • To assure that the employer and employee representative or other personnel will be present.
   • Situations in which OSHA determines that advance notice would produce a more thorough or effective inspection.
5. Slide 5

   OSHA Inspections

   • OSHA Inspections Priorities
   • Imminent Danger or any condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately.
   • Catastrophes and Fatal Accidents resulting in the death of any employee or the hospitalization of three or more employees.
   • Employee Complaints involving imminent danger or an employer violation that threatens death or serious physical harm.
6. Slide 6

   OSHA Inspections

   • OSHA Inspections Priorities, cont’d
   • Referrals from other individuals, agencies, organizations, or the media. Planned or Programmed Inspections in industries with a high number of hazards and associated injuries.
   • Follow-ups to previous inspections.
7. Slide 7

   OSHA Inspections

   • OSHA Can:
   • Enter any factory, plant, establishment, construction site, or other areas of the workplace or environment where work is being performed.
   • Inspect and investigate during regular working hours any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials.
8. Slide 8

   OSHA Inspections

   • OSHA Can:
   • Inspect and investigate at other times any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials.
   • Question privately any employer, owner, operator, agent or employee during an inspection or investigation.
9. Slide 9

   OSHA Inspections

   • OSHA Inspections Process
   • Typical OSHA on-site inspection includes four stages
   • 1. Presentation of inspector credentials
   • 2. An opening conference
   • 3. An inspection walk-around
   • 4. A closing conference
10. Slide 10

    OSHA Inspections

    • 1. Presentation of Inspector Credentials
11. Slide 11

    OSHA Inspections

    • 2. Opening Conference
    • In the opening conference, the compliance officer:
    • Explains why selected for inspection.
    • Obtains information about the establishment. Explains purpose of the visit, scope of the inspection, walk-around procedures, employee representation, employee interviews, and closing conference.
    • Determines whether an OSHA funded consultation is in progress or whether facility has received an inspection exemption.
12. Slide 12

    OSHA Inspections

    • 3. Inspection Walk-Around
    • After the opening conference, the compliance officer and accompanying representatives proceed through the establishment, inspecting work areas for potentially hazardous working conditions.
    • The compliance officer will discuss possible corrective actions with the employer.
    • OSHA may consult, at times privately, with employees during the inspection walk-around.
13. Slide 13

    OSHA Inspections

    • 3. Inspection Walk-Around, cont’d
    • An inspection walk-around may cover only part of an establishment – particularly if the inspection resulted from a specific complaint, fatality, or catastrophe, or, is part of a local or National Emphasis Program.
    • Other inspections may cover the entire facility, “wall-to-wall.”
14. Slide 14

    OSHA Inspections

    • 3. Inspection Walk-Around, cont'd
    • Confidentiality
    • Trade secrets observed by compliance officers are kept confidential.
    • Federal employees who release confidential information without authorization are subject to a $1,000 fine, one year in jail, or both; and removal from office or employment.
15. Slide 15

    OSHA Inspections

    • 3. Inspection Walk-Around, cont'd
    • Additional Inspection
    • The compliance officer checks posting and record keeping practices, including whether in use.
    • Records of deaths, injuries, and illnesses.
    • Posted OSHA’s Summary of Work-Related Injuries and Illnesses (OSHA 300A)
    • Prominently displayed the OSHA “It’s The Law” poster (OSHA 3165).
    • employee exposure to toxic substances and harmful physical agents (as required)
16. Slide 16

    OSHA Penalties

    • OSHA Citations
    • Citations inform the employer/employees of:
    • Regulations and standards the employer allegedly violated.
    • Any hazardous working conditions covered by the OSH
    • Act’s general duty clause.
17. Slide 17

    OSHA Penalties

    • OSHA Citations
    • Citations inform the employer/employees of, cont'd:
    • The proposed length of time set for abatement of hazards.
    • Any proposed penalties.
18. Slide 18

    OSHA Penalties

    • OSHA Citations
    • Process
    • After the inspection, citations with penalties will be issued if violations were observed.
    • The letter, instructions and citations must be date and time stamped upon receipt. This is the date the clock starts.
19. Slide 19

    OSHA Penalties

    • OSHA Citations
    • Process
    • Within 15 working days for OSHA citations the “allegations will be a final order.”
    • An informal conference must be within 15 working days of receiving the citation.
20. Slide 20

    OSHA Penalties

    • OSHA Citations
    • Process
    • Only the OSHA Area Director has the authority to tell the employer what penalties the agency will propose.
    • OSHA has six months following an inspection to issue a final report.
    • After reviewing the full inspection report, the OSHA Area Director will:
    • Issue citations without penalties.
    • Issue citations with proposed penalties.
    • Determine that neither are warranted.
21. Slide 21

    OSHA Penalties

    • Types of Violations
    • Serious
    • Other Than Serious
    • Willful
    • Repeat
    • Failure to Abate
22. Slide 22

    OSHA Penalties

    • Serious Violations
    • A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard.
    • OSHA may propose a mandatory penalty of up to $12,471 for each serious violation.
23. Slide 23

    OSHA Penalties

    • Other-Than-Serious Violations
    • A violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm,
    • OSHA may propose a penalty of up to $7,000 for each other-than-serious violation.
24. Slide 24

    OSHA Penalties

    • Willful Violations
    • A violation that the employer intentionally and knowingly commits or a violation that the employer commits with plain indifference to the law.
    • The employer either knows that what he or she is doing constitutes a violation, or is aware that a hazardous condition existed and made no reasonable effort to eliminate it.
    • OSHA may propose penalties of up to $124,709 for each willful violation, with a minimum penalty of $5,000 for each willful violation.
25. Slide 25

    OSHA Penalties

    • Repeat Violations
    • A violation of any standard, regulation, rule, or order where OSHA finds a substantially similar violation during a re-inspection.
    • OSHA may propose penalties of up to $124,709 for each repeated violation. To be the basis of a repeat citation, the original citation must be final.
26. Slide 26

    OSHA Penalties

    • Failure to Abate Violations
    • OSHA may propose an additional penalty of up to $12,471 for each day an employer fails to correct a previously cited violation beyond the prescribed abatement date.
27. Slide 27

    OSHA Penalties

    • Other Potential Penalties
    • Violating posting requirements can bring a civil penalty of up to $7,000. (OSHA does not fine for failing to post the “It’s The Law” poster (OSHA 3165).
    • Falsifying records, reports, or applications, upon conviction in a court, can bring a criminal fine of $10,000 or up to six months in jail or both.
28. Slide 28

    OSHA Penalties

    • Other Potential Penalties, cont’d
    • Assaulting a compliance officer or otherwise resisting, opposing, intimidating or interfering with a compliance officer in the performance of his or her duties is a criminal offense.
    • Anyone convicted of such an action is subject to a criminal fine of not more than $5,000 and imprisonment for not more than three years.
29. Slide 29

    OSHA Penalties

    • Criminal Penalties
    • An employer who is convicted in a criminal proceeding of a willful violation of a standard that has resulted in the death of an employee may be fined up to $250,000 (or $500,000 if the employer is a corporation) or imprisoned up to six months or both.
    • A second conviction doubles the possible term of imprisonment.
30. Slide 30

    OSHA Penalties

    • Adjustment to Proposed Penalties
    • A penalty may be adjusted downward depending on employer’s good faith, history of previous violations, and size of business.
    • When the adjusted penalty amounts to less than $100, OSHA does not propose any penalty.
    • For serious violations, OSHA may also reduce proposed penalty based on the gravity of the alleged violation. No good faith adjustment will be made for willful violations.
31. Slide 31

    OSHA Responses

    • OSHA Citations: Possible Responses
    • Informal
    • Conference
    • Affirmative Defense
    • Contesting
32. Slide 32

    OSHA Responses

    • 1. Informal Conference
    • The informal conference must be requested within 15 business days.
    • The informal conference is an opportunity to discuss your case.
    • If you believe the affirmative defenses are applicable, it should be introduced.
    • If you believe the conduct of the Compliance Officer affected the inspection it should be discussed.
33. Slide 33

    OSHA Responses

    • 1. Informal Conference
    • Recommendation
    • The highest level of management should attend and speak to the management commitment to workplace safety.
    • Any information that could affect the citations, e.g., if records were requested and could not be located but have since been located.
34. Slide 34

    OSHA Responses

    • 1. Informal Conference
    • Procedure
    • Purpose of the informal conference
    • Rights of participants
35. Slide 35

    OSHA Responses

    • 1. Informal Conference
    • Procedure
    • Contest rights and time constraints
    • Limitations, if any
    • Potential for settlements of citations
36. Slide 36

    OSHA Responses

    • 1. Informal Conference
    • Procedure
    • Other relevant information (e.g., if no employee or employee representative has responded, whether the employer has posted the notification form regarding the informal conference, etc.)
    • If either party requests a copy of the Informal Conference Summary (ICS), it shall be mailed to them as soon as possible.
37. Slide 37

    OSHA Responses

    • 2. Affirmative Defense
    • Procedure
    • An affirmative defense is a claim, which if established by the employer and found to exist by the CSHO, will excuse the employer from a citation that has otherwise been documented.
    • If you believe affirmative defenses are applicable, it should be introduced in informal conference.
    • Employers have the burden of proving any affirmative defenses at the time of a hearing.
38. Slide 38

    OSHA Responses

    • 2. Affirmative Defense
    • Unpreventable Employee or Supervisory Misconduct or “Isolated Event”
    • To establish this defense, employers must show all the following elements:
    • A work rule adequate to prevent the violation;
    • Effective communication of the rule to employees;
    • Methods for discovering violations of work rules;
    • Effective enforcement of rules when violations are discovered.
39. Slide 39

    OSHA Responses

    • 2. Affirmative Defense Impossibility/Infeasibility of Compliance
    • Compliance with the requirements of a standard is impossible or would prevent performance of required work and the employer took reasonable alternative steps to protect employees or there are no alternative means of employee protection available.
40. Slide 40

    OSHA Responses

    • 2. Affirmative Defense
    • Greater Hazard
    • Compliance with a standard would result in a greater hazard(s) to employees than would noncompliance and the employer took reasonable alternative protective measures, or there are no alternative means of employee protection.
    • Additionally, an application for a variance would be inappropriate; i.e., the reasonable alternative protective measures would not provide equal or greater protection.
41. Slide 41

    OSHA Responses

    • 3. Contesting Considerations
    • The contest process is a legal procedure involving an Administrative Law Judge.
    • The contest process involves an evaluation of the case files with discovery requests for information, depositions of employees, Compliance Officers, and others.
    • A hearing is convened.
42. Slide 42

    OSHA Responses

    • 3. Contesting
    • Considerations, cont’d
    • Could the case be closed without going to the hearings?
    • Once the contest letter is submitted the process of discussions and negotiations will occur between the attorneys. A formal settlement agreement can be reached before any hearings.
    • Should you decide to contest you must be within stated timeframes.
    • Contest Letter
43. Slide 43

    OSHA Responses

    • 3. Contesting Contest Letter
    • An employer’s Notice of Contest must clearly state what is specifically being contested.
    • It must identify to which item(s) of the citation, penalty, the abatement date, or any combination of these is being objected.
44. Slide 44

    OSHA Responses

    • 3. Contesting
    • Contest Letter - Contents
    • If the employer only requests a later abatement date and there are valid grounds to consider the request, the Area Office Director should be contacted.
    • If the employer contests only the penalty or some of the citation items, all uncontested items must still be abated by the dates indicated on the citation and the corresponding penalties paid within 20 days of notification.
45. Slide 45

    Questions?

46. Slide 46

    PSHA

    • Disclaimer
    • This material was produced under grant SH29640SH6 from the Occupational Safety and Health Administration, U.S. Department of Labor. It does not necessarily reflect the views or policies of the U.S. Department of Labor, nor does mention of trade names, commercial products, or organizations imply endorsement by the U.S. Government.