How to Survive an OSHA Audit

Presented By:Jim Rhoad

Inspection Priorities• Imminent danger• Catastrophes & Fatal

Accidents• Worker complaints and

referrals• Targeted inspections - high

injury/illness rates, severe violators

• Follow-up inspections

Imminent danger

Catastrophes & Fatal Accidents

Worker complaints and referrals

• Disgruntled employees• Legitimate complaints• Union organizers• Whistleblower

Investigator

Targeted inspections - high injury/illness rates, severe violators

• Targeted Industry• High Incident and Dart

Rate • Severe Violators

Follow-up inspections

• Post the citation as required?

• Correct the violations as required?

• Protected employees adequately?

Inspection Process by Compliance Officer

• Prior to inspection• Preparing for the

inspection

THE OSHA AUDIT: 4 Parts

1. Knock at the Door2. The opening

conference3. The

walk-around/inspection

4. The closing conference

The Audit: 1 - Knock at the Door

Hello I am from OSHA and I am here to help you…

• Plan for an inspection by making sure you have three key items in place prior to the arrival of the OSHA compliance officer (CO):– A determination if you will ask for a

warrant– A form to document what occurs during

the inspection– All pertinent documentation such as

written safety programs, training records, inspection records, etc.

Tip• We recommend you do not require

the CO to obtain a warrant before entry unless you need to gain time, such as when a manager or counsel needs to be present. It is your legal right to ask for a warrant but this might trigger a stricter audit (and raise possible red flags)

The Audit: 1 - Knock at the Door

• Escort Compliance officer to waiting area while you gather your team and documents.

• An OSHA compliance officer carries U.S. Department of Labor credentials – ask to see them.

Tip• Have a form available to record CO

information and what transpired during audit

Audit:2 - The opening conference

• In the opening conference, the compliance officer (CO) explains– why the establishment was selected. – the purpose of the visit– the scope of the inspection– the standards that apply.– The employer will be given a copy of any

employee complaint that may be involved.

• The employer is asked to select an employee representative to accompany the compliance officer during the inspection.

Tip

Treat the CO in a professional fashion, coordinate with on-site contractors and vendors and bring up any trade secret issues you may have.

Audit:2 - The opening conference

• If there is a plant safety committee, the employee members of the committee will designate the employee representative (in the absence of a recognized representative)

• Where neither employee group exists, the employee representative may be selected by the employees themselves, – or the compliance officer will

determine if any employee suitably represents the interest of other employees.

Tip

Create a written policy for OSHA inspections that covers:1. who will represent the

company and in case of absence who will be replacement

2. a statement on warrantless OSHA searches (if needed)

Audit:3 - The walk-around/inspection

• Inspecting work areas for compliance with OSHA standards– Have company representation with CO

• CO will point out to the employer any unsafe or unhealthful working conditions observed – Take notes and have fix violations if

possible– If CO takes a picture you take the same

picture• Trade secrets observed by the compliance

officer must and will be kept confidential. $1,000 fine and/or one year in jail for releases confidential information– The employer may require that the

employee representative have a security clearance for any area in question.

Audit:3 - The walk-around/inspection

• The CO may want to interview employees. Make sure to schedule these interviews away from your work area.

• It’s up to hourly employees if they want company representation during the interview. Advise the employee of his/her rights, your appreciation of their cooperation, and to tell the truth.

TipMake sure you have an employee representative attend the entire inspection and take accurate notes on areas reviewed and all discussions and comments from the CO, as well as any photos, videos. • This will assist your attorney

in contesting a citation

Audit:3 - The walk-around/inspection

• Here are some other items to have prepared prior to inspection:– Documented training logs/records– Recordkeeping– Equipment inspection records– Safety and health Program (written)

• integral part of any OSHA inspection– Review of insurance and third party

audits– Hazard assessment and abatement– Review of previous audits and citations.– Copy of the totals from the last page of

OSHA No. 300 has been posted – OSHA poster is prominently displayed

Tip

• Create a Self Inspection checklist for employees to complete weekly or monthly.

Audit:3 - The walk-around/inspection

Record Keeping & Safety Plan: The following standards require a written plan or program in place where applicable to the business:Emergency Action Plan 1910.38Fall Protection 1926.501Hazard Communication 1910.120Respirator Program 1910.134Permit-Required Confined Space Program 1910.146Lockout/Tagout 1910.147Personal Protective Equipment 1910.1632Powered Industrial Trucks 1910.178Electric Power Generation, Transmission and Distribution

1910.269

Electrical Safety-Related Work Practices 1910.333Bloodborne Pathogens: Exposure Control Plan 1910.1030Hazard Communication Program 1910.1200Subpart Z–Specific Chemical Substances 1910.1000 to 1910.1450 Appendi

x B

Posting and Citations Job Safety and Health Poster Form 3165

Accidents, Injuries and Deaths 300 Log

Tip• Understand the law

(consult 29 CFR 1910, general industry standards)

• Have documents easily accessible and written– In OSHA’s mind if its not

documented it probably didn’t happen.

Audit:4 - The closing conference

• The CO will review any apparent violations and discuss possible methods for correcting them. – If possible correct them while he

is there

• The CO will explain that the violations found may result in a citation and a possible financial penalty, then describe the employer’s rights and answer all questions.

Audit:4 - The closing conference

• Citations are usually prepared at the local OSHA office and mailed to the employer via certified mail. OSHA has up to six months to send a Notice of Penalty. Employers have 15 working days upon receipt to file an intention to contest OSHA citations, and/or to request an informal conference with the area director to discuss any citations issued.

• The citations include:– A description “with particularity “of

the violation– The proposed penalty if any– The date by which the hazard must

be corrected

TipRemember, this is not a time for debate. The law requires OSHA to issue citations for safety and health standards violations.

Citations

• Other Than Serious Violation

• Serious Violation• Willful Violation• Repeated Violation• Failure to Abate Prior

Violation• De Minimis Violation

Other Than Serious Violation

• Other Than Serious Violation - A violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm

Serious Violation

A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard.

Willful Violation A violation that the employer knowingly commits or commits with plain indifference to the law. The employer either knows that what he or she is doing constitutes a violation, or is aware that a hazardous condition existed and made no reasonable effort to eliminate it.

Repeated Violation • A violation of any standard,

regulation, rule, or order where, upon re-inspection, a substantially similar violation can bring a fine of up to $70,000 for each such violation. To be the basis of a repeated citation, the original citation must be final; a citation under contest may not serve as the basis for a subsequent repeated citation.

Failure to Abate Prior Violation

Failure to abate a prior violation may bring a civil penalty of up to $7,000 for each day the violation continues beyond the prescribed abatement date.

De Minimis Violation De minimis violations are violations of standards which have no direct or immediate relationship to safety or health. Whenever de minimis conditions are found during an inspection, they are documented in the same way as any other violation, but are not included on the citation.

Citations

• The employer will receive citations and notices of proposed penalties by certified mail. – employer must post a copy of each citation

at or near the place a violation occurred, for three days or until the violation is abated, whichever is longer.

• Common causes to dispute citations include:– The citation is false– The citation’s dollar penalty is excessive– You disagree with the citation’s contention

that the danger was real, serious, and that an accident was likely to occur

– The contention that you are responsible for causing the unsafe conditions

Source http://www.grainger.com/content/qt-inspection-practices-policies

Citation Flow Chart

Contesting Citation:Un Preventable Employee Misconduct

• Shifting liability back to employee.

• The premise is that is would be unfair to cite the employer who has promoted safety, trained his employees for something that could not be prevented. (essentially what an accident is)

Contesting Citation:

The OSHA Field Operations Manual says to prevail on the affirmative defense of “Unpreventable Employee Misconduct –the employer must show that it…

Employee Misconduct 1. Established a work rule adequate to

prevent the violation (Safety Policy)2. Effectively communicated the rule to

employees; (Training, safety committees, signed agendas or quizzes)

3. Established methods for discovering violations of work rules, and yet did not know about an isolated violation of the work rules; and (Audits dates and findings)

4. Established effective enforcement of the rule when violations are discovered (discipline policy in handbook and document discipline even verbal)

1- Create a written Safety Policy

• Must address the hazards most frequently encountered by your employees.

• Work rules must be as strict or stricter than the OSHA standards.

• Work rules need to be in writing. • Work rules should be distributed to

all– Have employees sign and agree (Handbook

and Safety Policy)

• General Standards in Safety Policy

2) Communicate the rules to your employees

• Ensure new employees are properly trained prior to being sent to work. – Examine your orientation program:

New Hire and Worker Transfer– No “grace period” granted by OSHA

for new employees.– Signed Forms for safety policy and

handbook• Continued training-Risk Management

– Videos, personal reviews or work– Educate employee regarding most

frequently encountered hazards– Industry specific risks– Review portions of work rules and

OSHA standards– Distribute hand-outs

2) Communicate the rules to your employees

• Maintain documentation– date, names of individuals in attendance,

trainer, translator, detail specific topics covered, job site or location of class

– Hold class in Spanish as well as English

• Safety Committees– Management should run or be involved– maintain strict records of meeting

agendas, sign in sheet and subject matters– Discipline supervisor for failure to hold

meeting or for failure to return documentation in timely manner

• Periodically use guest speaker or do demonstration to enforce safety – Insurance Agent, Risk Manager– Other Vendor- Fleet Safety, Hi-Los,

Wellness Coaches, OSHA Consultants

3) Take Steps to Discover Violations• Safety inspections, walkthroughs,

audits – Detect hazard

• written up hazards condition and abatement taken

– Detect work rule violation • write up employee(s)

• Use other resources to do periodic safety inspections– Company safety representative– Top company management officials– Worker compensation carrier– General liability carrier– Outside consultant/auditor– Sub-contractor– Question laborers

4. Discipline: Enforce and document violations

• Does your company have a disciplinary system?– Is it in writing?– Is it in or referenced in the work rules?

• Do the employees know they can be disciplined for violation of work rules?

• Do the supervisors know they can, and will be disciplined for failing to discipline an employee for violating the work rules?

• Do you document verbal warnings?• Do you track discipline?• Have you suspended or terminated an employee for violating

your safety rules?• Are employees aware that other employees have been

disciplined for violating work rules?• Your safety program must enforce the safety rules

– Document discipline

Prove the Un Preventable Employee Misconduct

QUESTION: OSHA cited my company because an employee was found not wearing safety glasses. There is no dispute the employee was not wearing the glasses, or that it was required (it is), but the employee was violating our strict safety glass policy. Do we have any defenses?

To have evidence to prove the Un Preventable Employee Misconduct defense you need to demonstrate that:1. Employer has an established PPE policy that addresses

the type of PPE for which the employer was cited;2. All employees (including the employee who was found

not wearing the PPE) have been trained on the PPE policy;

3. Employer conducts regular audits of the workplace to ensure employees are following the PPE policy

4. Employees are disciplined when they are found to be in violation of the PPE policy (or other safety rules).

Roofer - FALL

• Accident prevention program – not developed

• No person certified in first aid

• Inadequate fall protection

• Fall protection training not certified

Laborer – CAUGHT IN

• Accident prevention program – not properly maintained

• PPE – no hard hats in use• Excavated trenching &

shoring – excavated material stored at edge

• Excavated trenching & shoring – sides not sloped or supported

Pipefitter - EXPLOSION• Accident prevention

program – not coordinated with employees

• Welding/cutting in an area that contains explosive atmosphere

• Atmosphere not tested• Cracks/holes not covered

were sparks could pass • And more

Poor Safety has ConsequencesMeet Kristi Fries

• Lost her arms in 110 ton press• Employer knew press was faulty• She sued and won large

settlement• Fined $360,000 by OSHA• Company went out of business

costing 50 families their jobs