OSHA Visits: Contractor’s Guide to Understanding OSHA’s Procedures

By Don Moen, ABC of Wisconsin

Avoiding workplace hazards in construction takes a lot of effort and due diligence on the contractor’s behalf, but it is critical to ensure the safety and health of your employees. Compliance needs to be maintained as OSHA regulation citations can be very costly. So, what do you do if OSHA comes knocking at your door to assess your jobsite or facility? Below is a guide to help you combat and understand OSHA’s procedures for site and/or facility visits.

OSHA INSPECTION SEQUENCE OF EVENTS

Why is OSHA inspecting your company?

Ask the purpose of the inspection, especially whether it is in response to a complaint. If so, ask who made the complaint. If the person requested to remain anonymous, ask if it was made by a present or past employee, by an individual, a customer, supplier, another contractor, or by a person not directly involved, such as a union official with no trades people on the job. Request a copy of the complaint. Employees cannot be discriminated against for filing complaints. Seventy-six percent of the inspections are due to complaints of which only sixteen percent are valid.

Compliance Officer Identification

The OSHA compliance officer must present his or her credentials. Ask to see them immediately, along with ID’s of anyone accompanying him or her. Credentials include a color photo of the compliance officer and I.D. number. Non-OSHA personnel have no legal right to be along. Beware of imposters, especially sales people.

Who is Your Company Representative?

The compliance officer will ask to see the person in charge. If no employer representative can appear within a reasonable time, the inspections may still be conducted. If another contractor in the jobsite is being inspected, or your site is open to public view, you could be cited for a violation even though you had no representative present. Be sure all of your people who might find themselves “in charge” know what to do. You may also ask to alert top management or other corporations involved that an inspection is in progress.

Does OSHA Need a Warrant?

Although you have the right to insist upon a warrant for an inspection, this is generally not advisable, since the compliance officer will probably get one quickly and return, alert for violations. If he/she can see an exposed violation, he/she generally does not even need a warrant. The only time you might want to request a warrant would be when extenuating circumstances dictate this.

Present a Good Attitude

Be polite, cooperative, and respectful and try to show an awareness of the seriousness of safety hazards. Control your emotions. Take notes. Do not delay the inspection. OSHA is directed to act “in a reasonable manner” and to avoid undue and unnecessary disruptions at work.

At the Opening Conference

The compliance officer will review your safety program, especially for:

• Written Safety Program and Safety Rules.

• Hazard Communication Program and training records.

• Records of safety training, safety meetings and tool box talks.

• Who is in charge of safety?

• How are accident investigations conducted?

• Are the OSHA poster and emergency phone numbers posted?

• Are required OSHA records on the site or accessible and up to date?

• Do you have safety posters or other means of promoting safety?

• Who has valid certification in CPR/First Aid?

• Is personal protective equipment required or available?

• Does management appear very interested in safety?

Be cooperative and assist the compliance officer in filling out forms on your operation. Evidence of your good faith efforts to promote safety can reduce fines up to 30 percent and a good safety record can reduce fines by 10 percent.

The Walk Around Inspection

The employer representative can and should accompany the compliance officer on the “walk around.” The compliance officer may deny the right of anyone who interferes with a fair inspection to accompany him/her or permit additional personnel to go along (such as company safety officer). The compliance officer may take photographs and use other investigator equipment needed. When an employee representative exists, that person should also accompany the compliance officer. When there is no authorized employee representative, the compliance officer must consult with a reasonable number of employees on the job regarding safety and health conditions. He or she can speak with employees whether or not there is an employee representative but is less likely to interrupt work if one is present. The compliance officer does not necessarily have to see an unsafe practice to cite for a violation if there is enough evidence that a violation has taken place.

Company Representative’s Duties

During Inspection Take notes of what areas and equipment were examined, what employees and others were interviewed and what comments were made by the compliance officer. Take pictures, if possible (during or immediately after the inspection), especially if conditions photographed by the compliance officer, but may show a different angle or perspective more beneficial to the employer. Act as the company spokesperson and point out company safety practices and corrections which have been made. Do not point out conditions you thought were dangerous. Have corrected immediately, right before the compliance officer’s eyes, if possible, any violations he or she has pointed out. Or point out where employees are not affected or special conditions or conflicts when other regulations exist. The compliance officer may ask that substances be removed, an operation be stopped or personnel be removed. He/she cannot shut down your job without a court order. However, if he/she points out a serious hazard, it is best to correct it or get your employees away from the hazard.

The Closing Conference

The compliance officer will meet with the employer representative and should indicate what standards may have been violated and will advise that citations may be issued and penalties imposed. He/she may also fix a reasonable time for abatement of violations. The employer representative should ask questions he may have, make sure violations are clarified and try to determine whether the compliance officer feels they are serious or non-serious. Do not argue or say anything which might hurt your case but point out information which may help you.

OSHA Follow Up

The OSHA Supervisor should write up a report based on notes taken, including what violations the compliance officer pointed out, then contact the company. A follow-up inspection may take place within seven days after the abatement date, if a willful, serious or repeated violation has been found. OSHA will generally check to determine that such hazards have been corrected.

WHEN THE COMPLIANCE  OFFICER ARRIVES

If your jobsite is inspected by OSHA, there are certain procedures the compliance officer must follow.

1. Upon arriving at the jobsite, the compliance officer will introduce him/herself and show his/her credentials including both photograph and serial number and ask for an authorized representative of the company he or she is inspecting.

2. Next, the compliance officer will:

(A) establish the purpose of the visit – is it a general inspection or a response to a complaint?,

(B) establish that the company being inspected is involved in interstate commerce; and

(C) establish the number of employees on the project and the number of contractors.

3. Focused Inspections are OSHA’s attempt to address the leading cause of injuries and illnesses and to become more effective in eliminating the hazards causing serious injury or death. Compliance officers have been instructed to review written programs and policies, interview employees, and determine the safety attitude and awareness of the company being inspected. If the company’s efforts are sincere and if there are no violations in the focused topics, then the inspection will be concluded, and citations will not be written for minor concerns.

4. Before starting an inspection on the jobsite, the compliance officer should:

(A) request that a representative of each subcontractor be contacted, so each sub can be represented at the opening conference;

(B) establish the time for the opening conference;

(C) allow adequate time for subcontractors to be contacted; and

(D) not delay the inspection for lack of representatives or subcontractors.

5. Prior to the opening conference, the compliance officer may ask to see employer records, such as the OSHA Form 300A, 300 and accident reports (OSHA 301 or Workers compensation records). In February, March and April only, you must have the previous year’s 300A summaries posted at the jobsite and employee bulletin boards.

6. At the opening conference, the compliance officer will establish the scope of the inspections. He/she does not have to be specific about the areas of work or types of problems he/she may be looking for; he/she may only give a general indication of his/her purpose.

7. Before starting the inspections, the compliance officer may request that an employee representative be present for the inspection. Without employee representation, the compliance officer may speak with employees at random. On-site employees, whether union or non-union, have the right to have a representative on the “walk around.”

8. During the inspection, the compliance officer may take notes of all areas and pictures of problem areas. The compliance officer may mention areas which he/she sees as a problem. He/she may ask employees about specific conditions on the jobsite. During the inspection, you should also take notes and pictures (from a different angle). It is important to defend your practices with good reasons whenever possible, but don’t be abusive or argumentative. Permit the discussion to take place without interference.

9. After the inspection, the compliance officer will have a closing conference, during which he/she will

(A) review his/her notes from the inspection, and indicate areas for which a citation may be issued (he/she may not indicate every area);

(B) establish the control or responsibility for various areas;

(C) establish an abatement period for violations; and

(D) provide contractors’ representative with written information on rights under the OSHA Act options for contest/appeal of citations and related information.

10. Under the Act, a citation must be issued with “reasonable promptness” after the inspection. However, delays in the investigation of a problem, the circumstances surrounding an accident, etc., can slow the process. The outside limit is six months after the original inspection. Citations describe OSHA requirements allegedly violated, list any proposed penalties, and give a deadline for correcting the alleged hazards. Violations are categorized as willful, serious, other-than-serious, de minimis, failure to abate, and repeated. In settling a penalty, OSHA has a policy of reducing penalties for small employers and those acting in good faith. For serious violations, OSHA may also reduce the proposed penalty based on the gravity of the alleged violation. No good faith adjustment will be made for alleged willful violations.

11. Appeals, When OSHA issues a citation to an employer, it also offers the employer an opportunity for an informal conference with the OSHA Area Director to discuss citations, penalties, abatement dates, or any other information pertinent to the inspection. The agency and the employer may work out a settlement agreement to resolve the matter and to eliminate the hazard. OSHA’s Inspection Priorities OSHA inspections are usually unannounced and can take place anytime during normal working hours. Inspections can be the result of: Imminent Danger – Dangerous conditions or reasonable certainty to cause death or serious physical harm exists. The compliance officer will ask the employer to abate the hazard and remove endangered employees from exposure. Severe Injuries and Illnesses or Fatal  Accidents – Employers must report:

• All work-related fatalities within 8 hours.

• All work-related inpatient hospitalizations, amputations, or losses of an eye within 24 hours.

Complaints – These typically come as a result of employee complaints of alleged violations of standards or unsafe working conditions.

Targeted Inspections – inspections aimed at specific high-hazard industries or individual workplaces that have experienced high rates of injuries and illnesses also receive priority.

Follow-up Inspections – These are to determine if previously cited violations have been corrected. Failure to correct violations are taken very seriously by OSHA and usually result in additional penalties.

Referrals – of hazards from other federal, state or local agencies, individuals, organizations or the media receive consideration for inspection.