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Managing an OSHA Inspection—Are You Prepared?
FEATURE
Managing an OSHA Inspection…Are You Prepared?
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by Johnny Zitko, AssuredPartners; and Roger Paveza, Vista Safety Consulting
If there’s one thing I can promise… as every workplace is unique, every OSHA inspection is unique – as is every inspector. So, let’s outline the structure of the inspection, the employer’s rights, and what you can do to prepare.
Employer Preparation
Plan in advance! The best time to think about and plan for an inspection is before one happens. Just like other ‘emergencies’, have a set protocol, including, but not limited to: • Designate a safety director or other manager to act as the company’s representative during an OSHA inspection. • Contact your advocates such as your
Safety Consultant or your Insurance
Broker. • Consider having a backup for the company representative(s) to fill in for the primary representative during a vacation or other absence. • Develop a call list and inform front desk personnel/receptionists and key personnel. • Politely ask OSHA to wait until your company representatives and/or outside advocates can be present (OSHA will typically wait 30-60 minutes).
The best preparation for an OSHA inspection is having a robust safety and health management program in place. A mock OSHA inspection and regular
safety audits can uncover unrecognized hazards.
Why Is OSHA Here?
OSHA is on-site for a specific reason. There is a a hierarchy of priorities OSHA uses to allocate its inspection and enforcement resources: • Imminent danger situations –hazards that could cause death or serious physical harm receive top priority. Compliance officers will ask employers to correct these hazards immediately or remove endangered employees. • Severe injuries and illnesses –employers must report: • All work-related fatalities within 8 hours. • All work-related inpatient hospitalizations, amputations, or losses of an eye within 24 hours. • Worker Complaints – allegations of hazards or violations also receive a high priority. Employees may request anonymity when they file complaints. • Referrals of hazards from other federal, state or local agencies, individuals, organizations or the media receive consideration for inspection. • 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 – checks for abatement of violations cited during previous inspections are also conducted by the agency in certain circumstances.
Programmed inspections include those for Local, National, Regional, and Special Emphasis Programs to address compliance in hazardous industries or specific workplace hazards.
Your Rights as an Employer
Before an inspection even begins, employers have a right under the Fourth Amendment to the U.S. Constitution to be free in their workplaces, just as they are in their homes, from unreasonable searches and seizures, which includes inspections by OSHA. What that means is, OSHA may not inspect a workplace unless the Agency has administrative probable cause (a lower burden than criminal probable cause) to believe that a violative condition exists within.
Accordingly, employers have a right to demand an inspection warrant that establishes OSHA’s probable cause to inspect. We rarely (if ever) advise clients to demand an inspection warrant; rather we try to negotiate with the Agency over a reasonable scope of the inspection, and with such an agreement, waive the warrant right and consent to the inspection.
Aside from your right to request a warrant, other employer rights include: • “Reasonable inspection” at
“reasonable times” • Participate in management interviews • An opening conference • Protect trade secret and confidential business information • A copy of formal employee complaints • A closing conference • Accompany the Compliance Officer during the walkaround • Contest alleged violations
Opening Conference
An on-site investigation begins with an opening conference. In my opinion, this is the most important stage of the inspection because it is the time when employers can: • Meet the Compliance Officer (CO) –presented with proper credentials: an agency photo identification –there is no badge. • Negotiate to narrow the scope and set the tone of the inspection; • Understand (ask questions about) the purpose of and probable cause justifying the inspection; and • Try to establish ground rules with OSHA about how the inspection may proceed, from the collection of documents (through written requests only), to interviews (scheduled in advance), and physical access to the facility (only with a management escort).
Inspection/Walkaround
The company representative(s) should accompany the CO during the workplace walkaround. A labor union representative may also participate in the walkaround if the employees are part of a collective bargaining agreement.
Some notes regarding the Inspection/ Walkaround: • DO take the same photographs or video that the CO does. • DO NOT admit that something is a violation. • DO take detailed notes. • DO NOT give CO documents that were not requested. • DO only state the known facts. • DO NOT become angry or argue with the CO.
If any documents are requested, don’t feel rushed or bullied. Ask for a formal “Document Request” to ensure everyone is on the same page. Then, you’ll have a reasonable amount of time to provide the requested materials. Consider if materials may be privileged or protected work product. Don’t volunteer self-audits, insurance and consultant reports, or other similar materials without talking to counsel.
Also note that any safety and health violations in “plain view” of the CO during the walkaround may lead the inspector to insist on expanding the scope of the inspection. So, it’s best to plan your “route of travel” during the Opening Conference stage.
Closing Conference
At the conclusion of an inspection, the CO will conduct a Closing Conference –either in-person or via telephone. During the Closing Conference, the inspector will:
• Discuss any apparent violations and any pertinent information discovered during the inspection; • Cover the strengths and weaknesses of the employer’s safety and health program; and • Advise all representatives of their rights to participate in subsequent conferences, meetings, or contest proceedings.
This is your ‘last stand’ before a potential citation is issued, so you’ll want to: 1. Listen carefully to OSHA’s findings.
OSHA citations are sometimes based on misunderstandings as to what was or was not provided to OSHA.
The closing conference provides the opportunity to avoid citations based upon such misunderstandings. 2. Depending upon the circumstances, it may be worthwhile to inquire as to specific information supporting an alleged violation. The employer can then use this information to formulate a strategy for responding to the anticipated citation. 3. Ask about hazards that need to be abated. Prompt abatement of hazards has advantages such as
‘good faith’ and possibly a lower penalty.
Citations
When an inspector finds violations of OSHA standards or serious hazards, OSHA may issue citations and fines. OSHA must issue a citation and proposed penalty within 6 months of the violation’s occurrence. Citations describe: • OSHA requirements allegedly violated, • list any proposed penalties, and • give a deadline for correcting the alleged hazards.
As violations are categorized (by type), varying penalties can be attached. Below are the maximum penalty amounts, with the annual adjustment for inflation, that may be assessed effective January 15, 2022. (See OSHA Memo, Jan 14, 2022).
Type of Violation Penalty Serious Other-Than-Serious Posting Requirements $14,502 per violation
Willful or Repeated $145,027 per violation
Failure to Abate $14,502 per day beyond the abatement date
Post Citation (Informal Conference / Contest)
The post citation process really consists of two options: 1. Contest the citation(s) – formally disagreeing with what was issued.
An employer has 15 working days (from the receipt of the citation) to contest OSHA citations by filing a case with the review commission. 2. Request an Informal Conference –informally settling the case (typically what we recommend). The informal conference must be held during the 15-day contest period but does not stay the contest deadline. During an informal conference, OSHA personnel will review: • The purpose of the conference, • Rights of all participants, • Contest rights and time constraints, • The abatement/correction of the citations, and • The potential for settlement of any of the citations and/or penalty reduction.
Once terms have been reached, the OSHA representative will draft a settlement agreement. Prior to that being done, it’s recommended that the agreement include an “exculpatory statement” that provides that the employer hasn’t admitted to a violation of any OSHA standard. Essentially, it’s a “we agree to disagree”, and in a courtroom, a settlement agreement without an exculpatory clause could be used as evidence to reinforce your negligence. Frequently, such settlement agreements contain the following information: "By entering into this agreement, the employer does not admit that it violated the cited standards for any litigation or purpose other than a subsequent proceeding under the Occupational Safety and Health Act and that this agreement is not intended to be admissible or deemed an admission in any other proceeding other than a subsequent proceeding under the Act. "
Bottom line, an OSHA Investigation may feel like you’re being sent to the principal’s office, but it does not have to be a bad experience. Be Prepared and contact your Insurance Broker or Safety Consultant to help you through this process. As the old adage goes, “By failing to prepare you are preparing to fail.”
For questions and/or more information about this safety brief, contact: • AssuredPartners, Inc. at 630866-2519 or john.zitko@
assuredpartners.com
• Vista Safety Consulting at 847-9517544 or info@vistasafetyconsulting. com, www.vistasafetyconsulting.
com
About the Authors
Johnny Zitko is a Vice President of Risk Services at AssuredPartners. He has more than 20 years of insurance experience in claims, loss control and client service leadership. He uses his risk management knowledge to deliver strategies and solutions that help lower the total cost of risk for his clients. He holds a Bachelor of Science in Business from Illinois State University.
Roger M. Paveza, CRIS is President of Vista Safety Consulting and frequently partners with the AssuredPartners team to provide professional and technical advice to the construction industry sector. He utilizes his knowledge in all aspects of health and safety and risk management to deliver innovative solutions and cost-effective measures for managing clients’ risk. Questions can be sent to asa@assuredpartners.com
LEGALLY SPEAKING
How Should a Subcontractor Best Defend Against an OSHA Citation? Don’t Have a Citation To Defend
by Michael Metz-Topodas, Cohen Seglias
Legendary hockey player Gordie Howe once said, “The best way to get in shape is to never get out of shape!” In theory, he could have been talking about an OSHA citation defense. In other words, the best way to defend against OSHA citations is to never receive an OSHA citation. Easier said than done, of course. Keeping OSHA’s enforcement powers at bay depends on creating a comprehensive and focused safety program. Such a program should take specific, precise, and deliberate measures to lay a foundation of support to assert the many available defenses against an OSHA citation.
The Citation Process and Common Defenses
Almost all citations originate in a workplace inspection. OSHA’s construction workplace inspections typically result from complaints to OSHA or an inspector’s observation from outside a jobsite. If an inspector observes workplace conduct during an inspection that violates any one of the thousands of OSHA workplace safety regulations, the inspector usually issues a notice of violation or citation. These citations identify the specific regulation an inspector believes a contractor violated, describe briefly the hazardous workplace conduct or condition that did not comply with that regulation, classify the violation (e.g., “willful” or “serious”), and list the fine assessed and the required measures for abating the identified hazard. Once a contractor physically receives a citation, it has 15 working days to respond, either by paying the fine and beginning abatement; informally negotiating a settlement for a reduced fine, alternative classification, and adjusted abatement; or contesting the citation with the Occupational Safety and Health Review Commission (OSHRC), an administrative law court that hears citation disputes and related matters.
In such contests, OSHA bears the burden to show it had proper grounds to issue the citation, so it must present evidence that: (1) the regulation underlying the citation governs the cited contractor’s conduct; (2) the contractor’s conduct violated that regulation and created the workplace hazard the regulation is intended to prevent; (3) the contractor’s employees were or could have been exposed to that workplace hazard; and (4) the contractor knew or should have known with reasonable awareness that its workers were or could have been exposed to a hazard. In defending against a citation, employers, including contractors, commonly present evidence that no employees were exposed to the alleged hazard or that the employer did not and could not have known about the alleged violation or risk to workers.
In addition to showing that OSHA cannot make its case, employers can assert certain “affirmative” defenses for which the employer, not OSHA, has the burden of proof. An employer can show that employee exposure to a hazard resulted from an employee disregarding the employer’s safety policies and training despite the employer’s best efforts to implement such policies and training. Unfortunately, OSHRC courts infrequently accept this unpreventable employee misconduct defense.
Employers also can show that for the conduct OSHA claims violated workplace safety regulations, complying with the regulation would create a greater hazard than noncompliance or make it unfeasible for the business to achieve its business purposes. In other words, the employer had no safer way to perform the activity while still accomplishing its work. Presenting such a defense often runs up against OSHA’s voluminous research and data underlying the regulations’ precise and technical requirements.
Given the requirements and obstacles in asserting these defenses, successfully using them depends on having a safety program oriented towards preserving necessary evidence. Written safety policies, comprehensive training, regular safety monitoring, and strict enforcement can contribute to a successful citation defense. • Written Policies: Contractors should have written policies and practices that align as closely as possible with applicable regulations. For example, a masonry subcontractor should have policies that mirror OSHA’s silica regulations (e.g., Table 1, 29 C.F.R. 1926.1153(c) (1)(listing “engineering controls, work practices, and respiratory protection” for various activities that could generate respirable crystalline silica)). In addition to overall policies, contractors should
perform and record job hazard analyses (JHAs) for each worksite and every part of project work that poses safety risks. Drawing on these
JHAs, contractors should also prepare job-specific safety plans as required or if not already covered in the JHA. Contractors can rely on all
of these written policies to counter an OSHA claim that the contractor’s workplace did not comply with applicable regulations. Further, such policies support feasibility and greater hazard defenses because they prove the contractor considered all applicable safety requirements and alternatives in determining project operations.
• Trade Specific Training: Written policies mean little without instruction and guidance on recognizing hazards and performing tasks that comply with those policies. Training takes several forms —formal certified classes from outside instructors, internal training seminars, toolbox talks, and day-today direction from managers and supervisors. Because most OSHA
citation investigations probe relevant worker training early in the process, robust training programs can blunt or restrain such investigations.
• Safety Monitoring: No amount of written policies and training can ensure workers actually comply with such safety requirements. So, contractors must observe workers’ onsite performance to ensure proper safety procedures are followed.
Monitoring includes regular project supervisor or manager jobsite observations and surprise safety manager inspections. Third-party audits provide further feedback on how well a contractor’s policies address relevant safety risks and how effectively workers follow such policies. Robust monitoring
programs support the argument that OSHA cannot show the required employer knowledge.
Where such an argument succeeds, the citation must fail.
• Enforcement: Vigilant monitoring invariably leads to observing workers violating safety rules.
A strong safety program has policies that outline consequences for such violations, usually progressively more significant disciplinary measures. Such policies’ effectiveness depends on the people enforcing them, so contractors must apply this progressive discipline evenly to all violations and all workers, regardless of level or competence.
With such disciplinary programs, contractors preserve a vital element of the unpreventable employee misconduct defense and develop support for other defenses.
Three Key Rules for a Successful Safety Program: Document, Document, Document
On the question of existence, OSHA has found a simple answer: “If it’s not written down, it does not exist.” So none of the above safety program features can support a citation defense if written records are lacking. All safety policies and required practices must be in writing, whether in a company safety manual or other written safety plans and policies. All training events— from formal classes to toolbox talks to impromptu safety discussions—should be recorded using written program content materials and sign-in sheets. Daily logs or reports should record any day-to-day project safety monitoring, including manager observations, safety manager inspections, and outside audits. Finally, any disciplinary proceedings should have written records.
How Safety Programs’ Support of Citation Defenses Prevents Citations
Not only do these described measures form essential components of certain citation defenses (as explained in italics), but they also promote overall project safety. Written policies clarify safety expectations and practices for workers. JHAs and project-specific safety plans force managers and supervisors to give individualized considerations to targeted safety measures. Frequent training helps ensure safety concerns remain prominent in all team members’ minds as they perform daily work. Regular worksite observations help stop hazardous conduct before it can lead to injury or worse. Strictly enforced progressive discipline promotes compliance with safety requirements. In other words, not only does a proper safety program develop the evidence needed to assert certain citation defenses, but it also reduces the risk of worker injury and promotes overall workplace safety. Such a workplace minimizes safety regulations violations and thus citations. A proper safety program does not get contractor safety into good shape; instead the program ensures contractor safety never gets out of shape.
About the Author
Michael Metz-Topodas is a partner at Cohen Seglias. As a construction litigator, he represents general contractors, subcontractors, owners, designers, and suppliers through all stages of private, public, and federal projects. Michael helps clients navigate construction project disputes, including delay and inefficiency claims, design and construction defects, unforeseen site conditions, project scope disputes, and payment claims. He also defends clients against OSHA citations and advises on OSHA compliance issues. He can be reached at mmt@cohenseglias. com and 267.238.4755.
