An OSHA inspection can be a scary experience. But worrying about one can be just as bad if not worse than the real thing. You can reduce the dread of an OSHA inspection and make the actual experience—if you’re unlucky enough to go through it–less of an ordeal. The key is knowing what to expect.
Knowing how the OSHA inspection process works can help reduce the likelihood of citations, minimize the disruptive effect of inspections and, if all else fails, reduce the amount of fines and penalties.
The purpose of this OVERVIEW is to take the mystery—and hopefully the fear—out of an OSHA inspection and show you how to survive an inspection if an OSHA inspector shows up at your door. We’ll tell you:
• How OSHA decides who to inspect;
• How inspections work; and
• What you can do to prepare.
We’ve also sprinkled in tips and suggestions based on the good and bad experiences of companies that have gone through the inspection process and lived to tell about it. We plan to update this report from time to time, especially in the event of major changes in OSHA laws, regulations, interpretive guidance and enforcement patterns.
We know you’re busy so we kept this Special Report short and simple. If you want more details we recommend that you look at the OSHA Field Inspection Reference Manual (FIRM), an official publication available on OSHA’s website at http://www.osha.gov/Firm_osha_data/100003.html.
(*Skip this section if you already know the basics and want to cut right to the inspection strategies)
The Occupational Safety and Health Administration (OSHA) is part of the U.S. Department of Labor. In 1970, Congress passed and President Nixon signed a law called the Occupational Health and Safety Act of 1970 designed to minimize work-related hazards and prevent work-related injuries, illnesses, and deaths. One of the things the law did was to create an agency to administer and enforce that law. This is how OSHA came into being.
OSHA says its mission is “to assure the safety and health of American workers by setting and enforcing standards; providing training outreach, and education; establishing partnerships; and encouraging continual improvement in workplace and safety.”
The workplace inspection is the key element of the OSHA enforcement program. The purpose of these inspections is ensure that a workplace is following all appropriate standards. OSHA inspections are not conducted out of spite or to shut down your operation. Even so, there are potentially serious penalties for violations.
OSHA penalties can range from $0 to $70,000, depending on how serious the violation is and how dangerous it is to workers. The company’s attitude is another factor OSHA considers in imposing penalties. If a company commits a repeat or willful violation OSHA is likely to increase the fine. On the other hand, OSHA will keep the fine low if it thinks the company acted in good faith.
With this in mind, consider your shop floor. How many things can you think of off the top of your head that an OSHA Inspector might question? Three? Four? Eight? One?
If you find just one problem, you might feel pretty good about things. But that may be a false sense of security. Consider how serious that problem is. Keep in mind that one hazard could mean one life.
HOW OSHA DECIDES WHO TO INSPECT
OSHA can’t inspect every workplace in the country. There are only about 2,100 inspectors. That includes inspectors from the 26 states that run their own OSHA State Programs.
OSHA inspects about 45,000 worksites per year; state agencies do about another 60,000.
That sounds like a lot. But when you consider how many workplaces there are in the U.S. and the fact that American workers suffer approximately 5 million occupational injuries and illnesses per year, you realize that the total number of inspections is just a drop in the bucket.
Statistically, then, the odds that your company will undergo an OSHA inspection are long. But all companies aren’t at equal risk of an inspection. Let’s look at how OSHA decides who to inspect and you’ll understand why.
OSHA’s Inspection Priorities
Since OSHA can’t inspect everybody, it has established priorities for deciding who to inspect:
First Priority: Inspections responding to reports of imminent dangers or accidents about to happen.
Second Priority: Inspections after fatalities or accidents serious enough to send at least three workers to the hospital.
Third Priority: Inspections in response to employee complaints.
Fourth Priority: Inspections in response to referrals from other government agencies.
Fifth Priority: Targeted inspections, including under the Site Specific Targeting Program which focuses on employers that report high illness and injury rates, and special emphasis programs focusing on particularly hazardous work such as trenching.
Sixth Priority: Follow-up inspections of employers previously inspected.
SCOPE OF AN OSHA INSPECTION
The scope of an OSHA inspection, that is, how comprehensive it is, varies depending on the situation, the facility and the reason for the inspection. OSHA conducts two kinds of inspections:
Comprehensive Inspections. These are the most thorough inspections. During a comprehensive inspection the inspector looks at all or substantially all potentially hazardous conditions, operations, and practices within your workplace.
Partial Inspections. These inspections are limited to certain potentially hazardous areas, operations, conditions or practices at the workplace. However, OSHA inspectors have discretion to convert a partial inspection to a comprehensive one if they find indications of problems during earlier phases of the inspection.
THE INSPECTION PROCESS
Let’s now look at the actual inspection process. Here’s an overview of OSHA’s general inspection procedures.
When the Inspector First Shows Up
OSHA usually conducts inspections during the regular working hours of your workplace. With some exceptions, OSHA doesn’t notify the companies it inspects in advance. OSHA inspectors usually show up unannounced.
When the inspection begins, the OSHA inspector must present credentials to the owner, owner representative, operator or agent in charge.
Tip – Ask to see the credentials of the OSHA inspector if they’re not presented to you – just as you would ask any stranger who shows up at your facility unannounced. Asking for credentials isn’t just your right; it’s essential for your own security and the security of your workers. But don’t cop an attitude. After all, a person who shows up claiming to be an OSHA inspector is likely to be who he claims to be. Be polite and non-confrontational when asking for credentials. If the visitor refuses to show credentials, take the necessary security precautions as instructed by your company policy guidelines.
You can’t refuse to let a bona fide OSHA inspector enter your facility. But you may ask the OSHA inspector to get a warrant to conduct the inspection before entering and refuse entry without a warrant. Exceptions: You can’t refuse entry for lack of a warrant if you or one of your representatives has already given consent to the inspection or if there’s an emergency or urgent reason for the inspector to enter.
Tip – Before exercising this right, remember that the inspector is only human. Making his/her job more difficult just to stall for more time to prepare may cause you more difficulties during your inspection. But if you have a good reason you shouldn’t hesitate to exercise your right to demand that the inspector get a warrant.
If the inspector does get the warrant, you must let her in. It’s also illegal to interfere with the inspector’s conduct of the inspection. But once the inspector is in, you may require her to follow the same policies, procedures and rules as any other employee or visitor. This includes insisting on the wearing of mandatory Personal Protective Equipment, the removal of dangling jewelry, etc.
Tip – As part of your training or orientation, tell staff in advance what to expect if an OSHA inspector shows up. Appoint a contact person and instruct her to notify other necessary company officials, escort the inspector directly to a pre-determined area (conference room or office), and remain with the inspector until a company official arrives. Tell the contact person not to take the inspector through any area but the designated area of your facility until you have determined the purpose of the inspection.
One of the first things an OSHA inspector will do is ask if you want a representative to participate in the inspection. According to the regulations, one or more employer and/or employee representative may accompany the inspector “throughout or during any phase of an inspection if the [OSHA Inspector] determines that such additional representatives will aid, and not interfere with, the inspection” (29 CFR 1903.8(a)).
Having an employee or employer representative accompany the inspector is an important right.
Tip – Training a representative in advance how to monitor an inspector is a good way to protect yourself. For example, there have been situations in which violations were dismissed because the employee representative noticed that the inspector had done something improper. Consider using the person you designate as the contact person as your representative.
The inspector has to notify “all affected employers” of the inspection’s purpose and furnish a copy of the complaint, if there is one. Before conducting the inspection, the inspector is supposed to hold a brief meeting with employers and employees called the opening conference. During the conference the inspector will explain why he’s there and what to expect during the inspection. He might also distribute pamphlets or other handouts.
The opening conference is critical because you have a right to know the purpose and reason for the inspection.
Tip – If you don’t understand the purpose or reason, politely ask the inspector for an explanation. Demonstrate your willingness to cooperate and participate.
Tip – Don’t hide anything, but don’t open yourself up by offering information not relevant to the purpose of the inspection during the opening conference.
There are two kinds of opening conference. In a joint conference the investigator meets with both the employer and the employees or employee representative at the same time. Inspectors are supposed to encourage joint conferences in the interest of open communication. But if the employer or employees object, the inspector will conduct separate conferences with each group.
Tip – If the inspector has to go through part of your production area on the way to the opening conference, do not attempt to clean up the area he/she has seen. The inspector will make note of any changes made.
The Walkaround Inspection
The walkaround is the most crucial phase of the inspection. It’s where the inspector walks around your workplace looking for potential safety and health hazards and evaluates whether you’re in compliance with OSHA standards.
As noted above, you may have one or more representatives accompany the inspector during the inspection process, including especially the walkaround inspection. But the inspector may refuse to let representatives participate if they interfere with the inspection.
During the walkaround, the inspector may:
Take photographs and/or videotapes if she considers it necessary. For example, the inspector may want to take a picture of a machine that lacks a proper guard to document a violation. You have a right to get a copy of any photographs, video tapes, or voice recordings taken during the inspection. You’re also guaranteed that any trade secrets or confidential business information contained in such photographs, videotapes and voice recordings will be kept confidential.
Tip – In a comprehensive inspection, inspectors can look at just about anything. But most inspections are limited. In a limited inspection, inspectors may photograph or tape only things that relate to the subject of the investigation. So, for example, it would be inappropriate for an inspector to photograph a piece of equipment in the boiler room if she’s investigating a complaint about ergonomically unsafe keyboards in the office. Exception: Inspectors may widen the scope of an investigation if they notice notice an imminent danger during the walkaround.
Collect samples, including air and/or surface sampling. You have the right to get summaries of the results—but only if you request them.
Interview employees to ask them to point out hazardous conditions and to determine if advance notice of inspection (in the rare event that there was advance notice of the inspection) has affected the inspection conditions. Inspectors can interview employees in private if they think it necessary. Employee statements are confidential but can be used in court hearings. Although generally held during the walkaround, employee interviews may be held at any time during the inspection.
Review records like OSHA 300 logs and accident reports. This may occur before, during, or after the walkaround.
Let you fix a problem on the spot. The inspector may offer suggestions or help in correcting any deficiencies or hazards noted during the walkaround. She may even give you an opportunity to fix the problem before the end of the inspection to avoid getting a citation.
Tip – Take a digital or video camera with you on the walkaround and take pictures of the items the inspector points out. If an inspector takes a picture or tapes something, you should too. This way you’ll have an accurate pictorial record that you can use in case the inspector later mischaracterizes or exaggerates the problem.
Tip – Write down everything the inspector says, and even consider taking a tape recorder along during the inspection so you can tape the inspector’s every word. Don’t be afraid to ask questions.
Tip – Don’t make condescending remarks, derogatory comments, or slurs about your employees, the inspector, or anybody else. Also steer clear of political comments and jokes that may be ethnically or morally offensive and remarks about anything not having to do with the inspection.
Tip – Don’t argue with the inspector or try to hurry him around. Be as helpful and informative as possible.
Tip – Inspectors may not accept anything from the employer such as a gift or even lunch. So don’t offer them anything but cooperation.
Tip – Remain upbeat, but don’t try to be “best pals” with the inspector. The inspector is a professional and you must act the same.
Tip – Don’t ask the inspector on a date (even for coffee) or make any comments about appearance or clothing.
The Closing Conference
After the actual inspecting is over, the inspector will hold a closing conference to describe the results of the inspection, including any violations found and how long you have to correct them. Like the opening conference, the closing conference is attended by the employer and employee representatives, either jointly or separately, depending on the circumstances.
Tip – If you paid attention during the walkaround you’ll probably know what violations or concerns the inspector will bring up during the closing conference. Be prepared to provide explanations and estimates of when you can abate those violations at the closing conference.
The inspector may hold a second closing conference in person or by phone if he didn’t have all the necessary information at the first conference.
CITATION AND ABATEMENT
If you get cited you’ll receive copies of the citations by certified mail. The citation will list an abatement date, that is, a deadline for correcting the problem. You can contest the abatement date if you think you need more time but you must do so in writing and file your response within15 working days after getting the copy of the citation.
Tip – Ask the inspector to fax you the citations as soon as they’re ready, instead of waiting for them to arrive via certified mail.
You must post copies of any citations you receive in a part of your workplace that’s accessible to all employees and leave them posted for at least three days or until you abate the violation.
Once you fix the problem, you must provide evidence of abatement and be able to document your compliance.
Follow Up Inspection
OSHA may do a follow up instruction to make sure you corrected the violations you were cited for.
If it’s expected to take a long time for an employer to fix a problem, OSHA may also do what’s called a monitoring inspection to ensure that hazards are being corrected and employees are being protected while the abatement proceeds.
OSHA won’t normally do a follow up or monitoring inspection if you provide evidence that you’re abating the problem. Such inspections are generally used when an employer has been cited for willful violations, or repeat and very serious ones. Follow up or monitoring inspections are also more likely to be used when the citation is because the employer didn’t abate a violation and/or the violation creates an imminent danger.
HOW TO PREPARE
Here’s a look at some of the things you can do to prepare for an OSHA inspection.
Evaluate Your Chances Of Being Inspected
As we noted above, OSHA lacks the resources to inspect everybody and the mathematical probability of any single employer’s being the target of an inspection is low. But as we also saw, this is somewhat misleading.
OSHA has developed criteria for deciding who to target. We outlined OSHA’s priority list for inspections. We saw that, for example, OSHA makes it a priority to go after companies with high injury or illness rates and that perform especially dangerous work such as trenching.
OSHA also reports how many inspections it does, the reasons for each inspection and the type of inspection conducted.
Companies can use the OSHA priority criteria and inspection data to evaluate their likelihood of undergoing an inspection. This evaluation would generally involve:
1. Determining if your industry is one that OSHA targets for Programmed Inspection, e.g., refineries, chemical plants, and steel facilities.
2. Comparing your serious injury frequency rate to that of your industry. If your rate is above average for the industry, your risks of being targeted are greater.
3. Comparing the severity of your injuries and your workers’ compensation cost (or EMR – Experience Modification Rate) with that of your industry. Again, if you’re EMR is higher than the industry norm, you stand a much better chance of being inspected.
There are limits to the reliability of such evaluations. Other factors influence the likelihood of inspection including pure dumb luck. So even if your industry is not considered dangerous and your serious injury frequency and EMR are lower than industry norms, one complaint from an employee or totally unforseen mishap can result in an OSHA inspection.
The bottom line: Everybody is at risk of an OSHA inspection and needs to be prepared.
Preparation involves identifying the standards that apply to your operation, determining your level of compliance with those standards, and developing an action plan and tracking system for deficiencies you find.
CONCLUSION & WHERE TO GO FOR HELP
Employers looking for a more proactive approach can take advantage of the variety of resources OSHA offers—most of them free.
One notable example: Employers can contact the OSHA Consultation Program for their state to get free on-site help in identifying and correcting hazards or setting up safety and health programs. If you use this service you could qualify for a one-year exemption from routine OSHA inspections.
The service is delivered by state governments using well-trained professional staff. Most consultations take place on-site; however, limited services away from the worksite are available.
This service is confidential. Your name, your firm’s name, and any information you provide about your workplace, plus any unsafe or unhealthy working conditions that the consultant uncovers, will not be reported routinely to the OSHA inspection staff.
Your only obligation is to commit yourself to correcting serious job safety and health hazards — a commitment you’re expected to make before the actual visit and carry out in a timely manner.
Go to http://www.osha.gov/dcsp/smallbusiness/consult.html for further details.[fbcomments]