Health And Safety Plans (SB 198)

OSHA Inspections

OSHA enforces occupational safety and health regulations by inspecting workplaces, issuing citations, and imposing monetary penalties for violations of OSHA safety and health standards.

What can trigger an inspection of your business? The government’s priorities for scheduling OSHA inspections are as follows:

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1
Investigation of imminent dangers
Any conditions or practices that could reasonably be expected to cause death or serious physical harm to employees immediately or before enforcement action could be taken (These investigation are conducted within 24 hours.)

2
Fatality and catastrophe investigations
Any work-related incident that results in the death of an employee or the in-patient hospitalization of three or more employees (Such incidents must be reported to the nearest OSHA office by telephone or in person within eight hours of the incident.)

3
Investigations of complaints
For example, complaints made by employees, and referrals

4
Programmed inspections
Regularly scheduled inspections in “high hazard” industries

Inspections are conducted by compliance officers, usually without advance notice. In states that have their own plans, inspections are conducted by state inspectors. Workplace inspections must be conducted at a reasonable time, generally during the employer’s normal work hours, and in a reasonable manner.

When an OSHA compliance officer arrives for a workplace inspection, you have the right to deny entry and to demand that OSHA obtain a warrant to inspect the premises. OSHA may get a warrant from a judge in a simple and speedy fashion in advance of a proposed inspection or after being denied entry. Your failure to object to the inspection or ask for a warrant constitutes voluntary consent.

Representatives of the employers and employees are entitled to accompany the OSHA inspector on the “walk around” tour of the workplace. The compliance officer may interview employees privately during the course of the inspection.

When an employer grants the inspector entry for a limited inspection, such as one responding to an employee complaint, it may object to expansion of the inspection to other areas of the workplace. If an employer allows the inspector to enter but objects to the inspection of certain portions of the workplace or interferes with or limits any important aspect of the inspection, such as the taking of photographs or videotapes, attaching sampling devices, or questioning employees, OSHA will consider this a refusal of entry.

Small business exemption. In low-risk industries, there is a small business exemption from programmed inspections only.

Businesses with 10 or fewer employees are exempted from programmed inspections, so long as they have an occupational injury lost workday rate lower than the national average, as published by the Bureau of Labor Statistics.

Save Time

To calculate your lost workday rate, divide the number of illnesses and injuries or lost workdays by the total number of hours worked by all employees for the calendar year. Multiply that number by 200,000 (the base for 100 full-time employees working 40 hours a week for 50 weeks).

The latest available figures, for 2002, indicate that the national occupational injury incidence rates for private industry employers with between one and 10 employees was 2.7. Employers with between 11 and 49 employees had an occupational injury incidence rate of 5.9.

However, the small business/low-hazard industry exception applies only to programmed inspections, not to inspections triggered by safety complaints, accidents involving a fatality or the hospitalization of two or more employees, or reports of imminent dangers or health hazards. A lost workday rate higher than the national average can trigger an inspection for cause.

What happens if the OSHA inspection turns up something that doesn’t meet the government’s standards?

  • Citations
  • Variances
  • Penalties
  • Defenses

Citations

If a workplace inspection reveals violations of safety and health regulations or of your general duty to provide a safe and healthful workplace, OSHA will issue you a citation. The citation will charge you with a particular violation, set a time for abatement or correction of the condition, notify you of proposed penalties, and inform you of the procedure for contesting the charge before the Review Commission, should you choose to do so.

Citations are issued only to employees, regardless of whether the violation may have been caused or committed by an employee. When you as an employer, receive a citation, you have the choice of correcting the violations and paying the penalties, negotiating with OSHA to have the citation or penalties amended or withdraw, or contesting the citation before the Review Commission. Before making the decision, you may request an informal conference with the OSHA Area Director. OSHA policy is to attempt to settle most cases, reserving litigation for the most significant cases. Only in the most egregious cases will OSHA interfere with the operation of your business by shutting it down. If you cannot correct the condition, you can apply for a variance.

Variances

You may apply for a temporary variance from a safety standard when compliance cannot be achieved by the standard’s effective date because of unavailability of professional or technical personnel, materials, or equipment, or because necessary construction cannot be complete within the prescribed time.

A permanent variance may be granted if you can show that you can provide equivalent protection for your employees through alternative means.

Practice Tip

You should apply for a variance as soon as you know that there’s a hazard in your workplace that will take some time to fix, before OSHA gets involved, since the agency may decline to consider a variance application when a hearing is pending on a citation.

Penalties

The maximum penalty for a serious willful violation of OSHA is $5,000; the maximum penalty is $70,000. The minimum “base” penalty for a non-serious willful violation is $5,000. However, this penalty amount can be seen as a “starting point.” Proposed penalties may be reduced based upon the following factors.

  • The gravity or seriousness of the violation: how severe is the potential harm from employee exposure to the hazardous condition, and how probable is it that harm will in fact, result (the base penalty amount can range from $1,500 to $7,000)
  • Your good faith (such as cooperation in eliminating the problem); the penalty amount can be reduced by 15 or 25 percent in recognition of an employer’s good faith
  • The size of your business: the penalty amount can be reduced by as much as 60 percent for employers with 25 or fewer employees
  • Your inability to pay the proposed penalties because of financial difficulties
  • Your history of violations: the base penalty amount can be reduced by 10 percent if the employer hasn’t been cited by OSHA in the last three years

Defenses

You may defend against a citation by showing that:

  • You lacked knowledge of the violation.
  • No employees were exposed to a hazard.
  • The violation was caused by an unanticipated employee violation of your work rule.
  • Compliance with the standard would have created a greater hazard to employees.
  • Compliance with the standard was impossible or not feasible.

Defenses to a general duty violation. In order to establish that it was the employee’s misconduct and not you who is responsible for a citation under the general duty clause, you must show that:

  • The employee violated a well-enforced work rule.
  • The worker’s conduct could not be predicted.
  • The conduct could not be prevented.

The clause requires employers in all types of business to take OSHA seriously and to carefully maintain safety and health compliance.

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