Tuesday, December 26, 2006

Knock, Knock. Who's There? OSHA. OSHA Who?

This is no joking matter. When someone identifying themselves as an OSHA compliance officer shows up unannounced at your workplace and says they are there to conduct an inspection, you need to understand what to expect, what OSHA’s rights are to conduct an inspection, and most importantly, what your rights are as an employer.

The first thing to do is ask for the person’s credentials, to ensure he or she is indeed an OSHA compliance officer. You do not want to mistake a compliance officer for someone else (like a worker’s comp inspector or insurance loss control specialist), nor fall for an imposter (such as someone sent by a competitor to spy on your operations). Federal OSHA compliance officers are required to carry with them a credential that has their photo and clearly identifies them as a Federal OSHA compliance officer; do not rely on just a business card. However, those employers who are located in a State that formed their own State OSHA program (see previous blog for a list of these states) must remember that you will be dealing with a different agency than OSHA, with a different name and a different credential. So make sure you know exactly whom you should be dealing with.

The next thing to do is ask the compliance officer why he is there. The obvious answer is that he is there to conduct an inspection. The key, however, is to determine what “kind” of inspection. If you don’t ask why your company was singled out for an inspection, and just turn them loose to inspect, the compliance officer will probably make the best of the opportunity and conduct a comprehensive (wall-to-wall) inspection. This may occur even if the inspection was triggered by an employee complaint about a single alleged safety hazard. So it is very important to ascertain the reason OSHA has shown up to inspect, so that you can both agree on the scope of the inspection.

What triggers an OSHA inspection? Some companies seem to get inspected by OSHA on what seems like a regular basis, while others may go long periods of time and never be inspected. Here are some of the primary factors that trigger an OSHA inspection at your workplace.

Imminent Danger – this type inspection is OSHA’s top priority, and will be conducted if and when the agency becomes aware that one or more employee is working in a hazardous situation that subjects them to being seriously injured or killed if corrective action is not taken right away. OSHA compliance officers will address this type of situation as quickly as possible, often alerting the exposed workers that they are in imminent danger, and instructing the employer to have their workers cease the hazardous work. If for some reason the employer ignores OSHA’s warning to remove their workers from danger, then the compliance officer has to seek a compulsory order from a court to force the employer to stop.

Catastrophic Events – these events are defined as any work-related fatality, or, whenever three or more employees are admitted into a hospital as the result of a single event (such as an explosion or scaffold collapse where several people at once are seriously injured). Employers are required by law to notify OSHA within 8 hours of becoming aware of the work-related fatality or multiple admissions into the hospital; they should contact their local OSHA Area Office or call the national toll free number (1-800-321-OSHA) to make their report. Obviously, the purpose of notifying OSHA of these types of events is to give them an opportunity to investigate the company for violations of OSHA regulations while the evidence is still relatively fresh.

Two things to keep in mind about reporting catastrophic events. First, you are not required to notify Federal OSHA if the injured worker dies more than 30 days after suffering the injury or illness that causes their death (e.g.: a workers falls and is severely injured, but does not die from his injuries until more than a month later). Second, employers in some of the States that operate a state OSHA program (such as California and Utah) are required to contact their state OSHA office if only one employee (versus three) is admitted into the hospital due to a work related injury or illness. So check your state OSHA rules, where applicable, to be sure.

Employee Complaints – the reason OSHA mandates the OSHA workplace poster to be displayed at workplaces (see previous blog for poster info) is so workers understand they have a right to call OSHA to report a workplace hazard and request an inspection. OSHA first tries to determine that the worker is actually an employee of the company being reported, and if it is determined that they are, the employee is asked if they want to remain anonymous to their employer (typically they do). If the workers signs a written form (provided by OSHA) that states that the complaint is valid, then OSHA will conduct an onsite inspection, usually within 30 days, but often quicker. If the employee does not sign the statement, OSHA will sometimes treat the case as an “informal complaint”. This means OSHA may call the employer to alert them of the complaint and then fax them a copy of the alleged hazard(s), and require the company to investigate and respond to each alleged hazard in writing back to OSHA within a specified period of time.

One thing to remember about an employee complaint inspection; the compliance officer is supposed to limit their inspection to address the complaint item(s), but they might also issue citations for any violations noted in plain sight that they identify during the complaint inspection.

Referral Inspection – these inspections are triggered when someone OSHA deems a credible source alerts them to a potential hazard in a workplace. An “internal” referral often occurs when an OSHA compliance officer who specializes in “safety” issues notices a potential “health” hazard (like excessive air contaminants or noise levels) in the workplace during his safety inspection. When he returns to the area office, he will then alert the supervisor, who may then schedule a subsequent “health” inspection by an industrial hygienist who works for OSHA.

Federal OSHA also has “memorandums of understanding” with other agencies, such as the EPA. When an officer of one agency is inspecting a company and notices what they believe is a violation of the other agency’s regulations, they will contact that other agency and make a referral, which can subsequently result in a referral inspection.

Special Emphasis Program Inspections – often developed on a national basis, these inspections are designed to focus on a specific hazard (usually within a specific industry or trade) that OSHA believes is responsible a high number of workplace injuries or illnesses. OSHA identifies companies or workplaces where the hazard of concern is usually found, and then targets them to conduct an inspection that focuses on compliance with OSHA standards associated with that hazard of concern. Recent examples of special emphasis programs include inspections for compliance with standards regarding Silica, Machine Guarding on Mechanical Power Presses, and Scaffolding. As with employee complaint inspections, compliance officers can also issue citations for unrelated violations that are noted in plan sight.

General Inspections at Targeted Workplaces – in the past, OSHA would show up unannounced at a company or work-site that was considered to be in a “high hazard” industry (such as construction sites and manufacturing companies) to conduct a comprehensive inspection. The sites to be inspected were usually randomly selected by a computer program (so OSHA could not be accused of picking on a certain company). However, they often found themselves inspecting a company that had an excellent safety program and an extremely low injury rate; obviously this was not the best use of their limited resources.

Nowadays, OSHA generally utilizes a focused approach to identify companies who will be targeted for a general inspection. OSHA mails out forms annually to companies to gather their injury and illness data and the number of hours worked for the previous year, and then uses that information to calculate each company’s injury rate. Then, OSHA prioritizes those companies with the highest rates for randomly selected inspection. However, OSHA also randomly selects a few companies who report lower injury rates, to review their injury & illness records and ensure they were accurate in their reporting. This targeted approach is designed to allow OSHA to focus their limited resources at work-sites where they could potentially have the greatest impact in identifying workplace hazards that had previously gone unabated.

While the triggers for OSHA inspections listed above are not all-inclusive, they do represent the factors accounting for the vast majority of OSHA inspections. Additional information about this topic can be found on OSHA links through our company website.

The next blog will discuss company representation when OSHA does arrive to inspect, and, the pros and cons of demanding OSHA obtain a warrant before being allowed to inspect.