The 6 Key Stages of an OSHA Inspection
Most employers dread the realization that OSHA may knock on their workplace door at any time. Having an OSHA inspector (they're actually called CSHOs - pronounced co-show - which stands for Compliance Safety and Health Officer) knock on the door is often intimidating, even when you have nothing to hide. In many respects, it can be comparable to getting an IRS audit letter in the mail. First reaction is typically one of anxiety. That's understandable.
This post is intended to introduce you to the key stages of the OSHA inspection process to help ease some of the anxiety that some employers may experience with this topic. Other blog posts will dive deeper in the OSHA inspection process and how to avoid expensive citations (violations). For now, lets understand the basic OSHA inspection process.
The following are the 6 basic phases of the OSHA inspection process with a brief description of what happens during each phase of an inspection.
1. Target Selection
Obviously, the first thing that OSHA has to do is identify which workplace it will inspect on any given day. Keep in mind that OSHA is prohibited (it's actually against the law) from providing any advance warning to an employer that they will be conducting an inspection. All inspections are initiated as a "surprise" to the employer. Follow-up visits may be coordinated for various reasons (to schedule air sampling, interview employees that weren't present on the first visit, etc), but there is no advance warning for the first proverbial knock on the door.
The actual process for selecting a workplace to inspect is a bit of a "black box" endeavor which uses many different methodologies. Some of the methodologies include: receiving employee complaints, responding to a serious accident or fatality, referrals (example: seeing something in a TV broadcast or newspaper story), or as part of a special emphasis program where OSHA is targeting specific issues or industries (example: trenching in construction, or amputations in manufacturing, etc). The CSHO will eventually be assigned or select a specific workplace based on various parameters and proceed to conduct background research on that employer. Unless it is a complaint or accident, the selection process is mostly randomized.
The CSHO will research any prior OSHA inspection history for that establishment as well as conduct some basic research about its industry, types of issues identified at peer locations, and collect other information so that they have a basic understanding of what they might be encountering at this location.
2. Opening Conference
The CSHO will always attempt to enter the facility through its main (visitor) entrance where they will identify themselves as an OSHA compliance officer and request to meet with a management representative. Be sure to inspect their credential and you may even want to confirm their identity by calling their local office. There have been a number of cases where individuals were found to be impersonating an compliance officer -- and arrested. It doesn't happen very often, but it does happen.
During the Opening Conference, the CSHO will explain why they are initiating an inspection (complaint, referral, special emphasis program, whatever the case might be) and describe how the process works and generally what they should expect throughout the course of the inspection. At this point, the CSHO may request some documents such as the OSHA 300 logs, perhaps a copy of the safety program(s), and other information.
It is important to note that the employer does have some rights which it may decide (or not decide) to exercise. For example, although rarely recommended, the employer does technically have the right to request that the CSHO obtain a warrant from the court prior to proceeding with the inspection. Note: I state this to make the point that the employer does have some rights. However, requesting a warrant is NOT something that should be entered into lightly and should be thought out in advance with the assistance of legal counsel.
Lastly, if the reason for the CSHO wanting to initiate an inspection does not apply to your workplace, this will be the best opportunity to have that discussion and possibly have the inspection cancelled before it really even begins. For example, if the CSHO is there for, say, a Forklift special emphasis program inspection, and you never used them onsite - this would most likely be justification to have the inspection cancelled. As closing note on this section, the employer does have a right to request time for the appropriate manager, OSHA consultant, or legal counsel to be present if they are not currently at the location.
The "walk-through" is the portion of the inspection where the CSHO - with a representative(s) from the employer - literally walks through the areas that are within the scope of the inspection and makes observations, interviews employees, takes photos / videos, or perhaps begin conducting some personal air or noise sampling. These is the phase where the CSHO will be very observant and focused on finding violations to cite. This is where the rubber meets the road.
CSHOs are allowed to interview hourly employees in a private setting without any supervisors or management participating in those discussions. Although, those employees do have the right to not have any questioning conducted in private, if they so choose. The unintended consequence, however, is that this may trigger some doubts in the CSHO's mind as to what is motivating the employee to make such a stand. The employer should not influence the employee either way - furthermore, the employer must not reprimand the employee in any way regardless of the interviews. Employees are protected by law to be able to speak openly, freely, and without fear of reprisal with OSHA.
The CSHO will collect any evidence of violations for later analysis. The evidence may include sampling data, documentation, employee statements, and/or photos. When OSHA issues a citation, it must have the evidence to substantiate those violations in the event they are contested ("appealed").
4. Closing Conference
In short, the Closing Conference is where the OSHA will meet with the employer to discuss the inspection and some of the observations and initial impressions. The CSHO will communicate the hazards and unsafe conditions that they observed during the walk-through(s). The CSHO will not refer to these as "violations" because he/she will still need to do more analysis and review of the evidence in order to determine whether or not they have a defensible violation in which to cite. In other words, not all of the observations that the compliance officer shares with you at this point will definitively become violations with proposed penalties. However, you should still listen closely and take copious notes as what they say will provide clues as to what might be cited. Furthermore, the employer should take that opportunity to go ahead and address those issues voluntarily. Regardless of whether or not OSHA will cite you for that condition, it will demonstrate good-faith, reduce the risk of injury or future violations, and is simply the smart thing to do.
It is important to understand that the Closing Conference is an opportunity to correct any misconceptions or errors that the CSHO may be operating under when they are providing this 'debrief'. Further, the Closing Conference should be used as an opportunity to listen to what the CSHO is saying and ask questions, if you have any. Because these are not officially "violations" yet, the inspector will not be volunteering (or responding to questions) regarding potential penalties. The CSHO will share information about employer's rights in enforcement cases during this conference.
5. Issuance of Citation with Penalties (if applicable)
OSHA has 6 months from the date in which they initiated the inspection to issue a citation. This is in accordance with the statute of limitations stipulated in the Occupational Safety and Health Act of 1970. If OSHA does not issue the employer a citation within this time frame, then the inspection is closed and no citations may be issued. It becomes a little more complicated for the CSHO if the violation they are seeking to cite occurred (and was corrected) a few months earlier since the 6 month statute of limitations would also apply.
Before you get excited about the possibility that the OSHA inspector might overlook your case and missing the 6 month deadline, I do not recall ever hearing about such a situation though I would suspect it has occurred in OSHA's almost 50 year history. In other words, it's not likely to happen.
In approximately 20-25% of the inspections, the CSHO will close the inspection as "in-compliance" with no citations issues. This doesn't mean that the employer has a perfect safety performance or that it doesn't have any would-be violations, it's just that the compliance officer did not have sufficient evidence for any violations that were within the immediate scope of the inspection. Employers are ill-advised to believe that if this occurs to them that they can, in effect, not worry about safety or compliance any more. That would be a mistake.
Depending on the scope of the inspection, the hazards identified and violations to be cited, the employer may receive a citation well in advance of the 6 month deadline. It is the Area Director that will officially issue the citation, NOT the compliance officer. This is a common misconception. The CSHO merely recommends violations for the Area Director's consideration. But it is the OSHA Area Director that will issue the citation(s). At this point, all case communications, effectively, transition to being employer - Area Director.
The Agency conducts approximately 95,000 inspections (State and Federal) across the country and territories. Yes, OSHA's jurisdiction includes the territories such as Puerto Rico and Guam. According to the agency's statistics, the average inspection will yield around 3 violations which may range from a few hundred dollars up to $70K each depending on the circumstances. More on the penalty structure in a future post. It's not unusual for inspections to result in penalties that exceed well over $100K.
6. Contest ("Appeal")
The employer has the right to contest the citation within 15 working days if they feel the violation is not justified or the penalty excessive. If the employer does not officially contest the citation to the Area Director within this allotted time, then the citation becomes a "final order" (or it can be thought of as 'written in stone'). This is why we always recommend that the employer contest the citation if for no other reason that to provide time to evaluate options, learn your rights, and otherwise decide how to proceed. The employer can always enter into a settlement agreement with OSHA or even pay the penalty outright before the original 15 day window closes, but contesting gives the cited employer time to evaluate their options without risking the final order being forced upon them so to speak. It simply buys the employer the time to think and make decisions without the pressure of a clock.
The vast majority of cases which are contested result in some sort of settlement agreement (informal or formal) between the cited employer and the agency. The comparative few which are not settled will go before an Administrative Law Judge (ALJ) within the Occupational Safety and Health Review Commission (OSHRC) which is dedicated to hearing OSHA (and its sister safety agency, MSHA) cases.
The next step in the contest process would be for the OSHRC Commissioners themselves to review the case. In most situations, the case will end with OSHRC's decision being published. However, should one of the parties choose, they may still elect to appeal the case into the district federal court system where the case may eventually go all the way up to the US Supreme Court. Such cases are quite rare, but several of them over the past 50 years or so have gone before the Supreme Court for final adjudication.
This summarizes the OSHA inspection process. Future posts will delve more in to the details and pitfalls to avoid. If you have any questions about how the OSHA inspection process works or want to learn more about how to reduce your site's risk of injuries or citations, you are welcome to visit us at www.prometrixinc.com to learn more about workplace safety.
Prometrix Safety Consulting, with a staff of former OSHA officials, provides clients with expert consulting and training to help them navigate the complex regulatory landscape of occupational safety and health compliance. Our safety and health expert services include OSHA compliance audits, developing or reviewing safety and health compliance programs, evaluating subcontractor safety performance, and providing OSHA training.