osha fines are increasing
TRANSCRIPT
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OSHA Fines are Increasing
Ready for an OSHA Inspection?
Inspection Advice from Former OSHA Inspector
Paul McNeill, CSP, CHST Certified Safety
Professional Construction, Health and
Safety Technician
OSHA Laws Have Updated
In November 2015, previous bans on OSHA penalties were removed
Penalties have been increased dramatically
In 2016, penalties were adjusted for inflation
Each year the penalties will increase with annual inflation
Penalties Update Summer of 2016
By July 1, 2016, the Department of Labor will publish in the Federal Register an Interim Final Rule adopting the new penalties
Penalties will take effect on August 1, 2016
If companies are currently participating in inspections that may extend beyond
August 1, 2016, any proposed penalties will fall under the new penalties
Preparation for Inspection
Organizations must have a plan for the OSHA inspection: Before it occurs While the inspection occurs After the inspection
Company OSHA
readiness requires planning
Advance Preparation for OSHA Inspection
Organizational planning can limit delays in operations
Prior planning could limit fines
Advanced preparation keeps employees safe and decreases organizational liability
Written safety programs allow an organization to maintain OSHA compliance
The plan can even remedy occupational safety concerns not covered by OSHA
Employee involvement with the written safety plan will put the organization in a more positive light when the OSHA inspector arrives
Written Safety Program
Safety Committee Meetings
Meetings should discuss the type of questions that an inspector might ask Employee training questions Employee familiarity with safety programs
Safety committee meetings should be be documented for employees and OSHA
Safety Checklist
A safety checklist provides employees a daily reminder of safety’s importance
The checklist should be reviewed by supervisors and safety personnel at the organization
Different checklists can be utilized by individual departments to meet the organization’s needs
Employees should be using the checklist to look for safety hazards on a daily basis Simple daily checks such as looking for blocked exits can
establish patterns that avoid OSHA citations
Establishing Company Representatives for Inspection
Personnel involvement in the OSHA inspection must be designed in advance of the inspection
Representatives are needed for: OSHA opening conference Walkaround inspection Closing Conference
Training of all representatives is highly important
OSHA Inspection Roles
Determine which manager/supervisor will be the primary contact with the OSHA compliance officer
Establish union representatives to work with OSHA
Decide who will accompany the inspector on the walkaround
Define who will receive OSHA receives requests for documents
Clearly Defining Roles
Primary Contact with OSHA
Ideally this contact should be the company’s safety director
Individual must be well versed in OSHA standards related to the facility including: Health and safety
conditions at the facility Company’s health and
safety program Location of all company
safety records
Primary Contact with OSHA
Representative needs to request the purpose of the OSHA inspection An inspection involving a complaint can
limit the scope of the OSHA inspector's scrutiny
Contact must have knowledge of national emphasis programs that relate to the organization's industry Combustible dust, federal agencies,
hazardous machinery, hexavalent chromium, isocyanates, lead, primary metal industries, process safety management, shipbreaking, silica, trenching and excavation
National emphasis programs may involve a wall to wall inspection
Anything an OSHA inspector can observe in plain view is considered in evaluating safety conditions and can result in citations
Accompanying the OSHA Inspector
The individual(s) accompanying the inspector should be defined before the inspection
This individual will document the areas reviewed by the inspector and any comments made to or by the inspector
While accompanying the inspector, pictures can be taken of the conditions the inspector notices
Receipt of OSHA Documentation Requests
Person handling documentation requests must be thoroughly trained and know the location of safety documentation
OSHA inspector may request copies of documents Companies have the option to
ask OSHA to make a written request
All written requests from OSHA should be reviewed by staff before a response is made
Produce requested documents in a timely manner Citations can be written for
noncompliance
Answer only the document request that is asked
Determine in Advance Whether to Request a Warrant
Organizations have the right to ask OSHA inspectors for a warrant for probable cause to inspect
While this option is legally permissible, it can be disadvantageous to an employer
Often, requests for a warrant still result in the area being inspected OSHA inspector will contact
OSHA supervisor and regional director
Determination of whether a warrant is required will be made by the OSHA regional director
Requesting a warrant creates curiosity for the inspector and may result in enhanced attention to the establishment
The Day of the Inspection
Opening Conference
Walkaround Inspection
Employee Interviews
Closing Conference
Opening Conference
Send for the organization’s pre-planned OSHA representatives during the opening conference
Determine what the subject of the inspection is Complaint Programmed inspection Local enforcement program
The OSHA inspector will allow up to an hour before beginning the inspection Do not delay the inspection There is a specific place on the OSHA notes
for delays
Opening Conference
Use the time during the opening conference to decide the direction of the walkaround inspection
Notify floor supervisors to utilize daily safety checklist
OSHA inspectors have to undergo the same safety orientation/briefing as employees and wear the appropriate personal protective equipment
Managing the Inspection
OSHA inspectors must be accompanied at all times by company representatives
The individual(s) going on the walkaround need to make notes about anything the inspector says is in an unsafe condition These notes will be used during the
closing conference or any informal conference
Pictures During the Inspection
The OSHA inspector may or may not take pictures
Organizations can take a picture at the same time the inspector does Representatives should politely ask
what condition attracted attention
Taking the pictures and writing out detailed notes gives material to contest a proposed citation
Employee Interviews
Inspectors can ask to do a random sample of private employee interviews
In a company with a union, an employee can choose to have a union rep or not
It is not common for managerial staff to be present during the interview Requesting a manager to be present raises red flags with
OSHA and may bring unnecessary attention to your organization
Briefing employees about the types of questions that may be asked prevents the need for management presence
Closing Conference
The OSHA inspector will lead the closing conference Inform the organization of any conditions that they thought
were unsafe Explain possible citations Request documentation Note the organization’s response to feedback
Attitude Matters
There is a section on the OSHA inspection report for “any unusual conditions-negative employer attitude”
Remain polite and neutral with all issues but explain why you feel a condition is not unsafe
There is a section on the closing conference form for the inspector to make comments about on any issues that were brought up during the closing conference
Be sure that high quality notes are taken during the closing conference
After OSHA Leaves
Correct any unsafe conditions that the OSHA inspector may have pointed out.
Any citations that are received must be posted in the workplace.
Citations must be posted for a minimum of three days and should remain posted until the issue is resolved.
Informal Settlement Procedures
Companies have 15 working days after receiving a citation to contest If the time elapses, the original fines will remain on the final
order Before the 15 days elapse, an informal
settlement conference can be requested
The notes and pictures your representative took during the walkaround will be integral
During the Informal Settlement
Discuss why you feel a citation is inaccurate
Negotiate for the status of an item to be reduced from “serious” to “other”
Local OSHA Area Offices have the authority to reduce monetary fines by 30% - 40%
Appeals Procedures After the Informal Conference
Companies can initiate a formal appeal by filing a “Notice of Contest” with OSHA Area Director within 15 working days of citation receipt Violations, monetary penalties, and the abatement deadline can be
appealed
If the informal conference does not result in a favorable settlement, your case file is sent to the Regional Solicitor’s Office of OSHA There will likely be further attempts to get your company to settle on
any citations
Trial Before an Administrative Law Judge
The Regional Solicitor has limited resources
Only a minute percentage of cases with citations issued by OSHA ever go all the way trial For example, in the nearly 700 OSHA inspections I
performed not a single case went to trial
Summary
Regardless of what the penalty amounts might become after OSHA increases them, employers should focus efforts on implementing an effective safety program and preparing for an OSHA inspection.