The 6 Reasons Why OSHA Will Inspect Your Workplace
OSHA Enforcement Context
There have been a number of recent developments which significantly sharpen OSHA's (Occupational Safety and Health Administration) proverbial teeth. The Agency is now authorized to almost double their penalty structure where a Serious violation penalty can be issued up to almost $13,000 and a Willful violation up to about $125,000. These penalty limits, by the way, are now inflation adjusted. Furthermore, the Department of Justice and OSHA are collaborating to increase criminal prosecution of workplace safety violations. To put it another way, OSHA has traded in its "stick" for a "sledgehammer" when it comes to enforcement.
OSHA has jurisdiction over an estimated 8 million different workplaces across the country, including US territories such as Guam, US Virgin Islands, and Puerto Rico. This spans all manufacturing, construction, healthcare, retail, many services, and numerous other industries. In aggregate, OSHA conducts an estimated 100,000 inspections per year where the penalties can range from $0 (no violations cited which happens about 20% of the time) up to literally $10s millions in extreme cases -- and possibly even, albeit rare, criminal prosecution as noted above.
Why OSHA May Target Your Workplace
If you're like most executives and managers, you may be getting increasingly concerned about OSHA unexpectedly knocking on your door to conduct an inspection. It can happen just about anywhere, at any time, and for a number of different reasons. The purpose of this post is to briefly explain the 6 different reasons "why" OSHA could knock on your door. These are listed in the priority order in which OSHA would investigate/inspect. It is important to note that an employer will not, under penalty of law, be given prior notice of an initial inspection. OSHA inspections are initiated by surprise.
#1 Imminent Danger:
This occurs when OSHA receives a report where death or serious harm is threatened AND it is reasonably likely that a serious accident could occur immediately -- OR, if not immediately, then before abatement (correction) would otherwise be implemented. This most commonly occurs with construction (but also general industry) safety issues related to trenches/excavations (video example), equipment lockout / tagout (video example), fall from heights, or other dangerous scenarios.
It may also apply to health issues where chemical exposures are Immediately Dangerous to Life and Health (IDLH) or cause significant harm/impairment. An example would be entering a confined space, such as a fermentation tank in a winery or brewery that has a high carbon dioxide (CO2) concentration level. If/when OSHA receives a report of activities which may pose an imminent danger, then the Agency will dispatch one or more compliance officers as quickly as possible (same day) to investigate.
If the employer refuses to correct the hazard / remove exposed employees, then OSHA will move to post a Notice of an Alleged Imminent Danger and exert as much pressure on the employer as possible to correct the situation, including obtaining a court injunction to stop related work activities. This scenario, although there are examples, occur very rarely.
#2 Fatality / Serious Accident:
OSHA regulations require that employers report a workplace fatality or reportable serious injury (hospitalization, amputation, loss of eye) to the Agency within certain short time frames. A fatality must be reported to OSHA within 8 hours which will always trigger an inspection. The Agency will determine if it was work-related, and if it was, issue citations on any uncovered violations of OSHA standards.
A Serious Injury includes an employee that has been hospitalized (actually admitted into the hospital, it does not apply to emergency room visits), an amputation, and/or a loss of eye injury. These must be reported to OSHA within 24 hours. Depending on the circumstances and nature of the serious injury being reported ("triage process"), OSHA may automatically initiate an inspection or decide on a case-by-case basis whether or not to conduct the inspection. Workplaces with a negative OSHA history are more likely to be inspected.
Employees have the legal right to file a workplace safety violation complaint with OSHA without fear of reprisal. OSHA takes these complaints very seriously. How OSHA responds to the complaint varies depending on the specificity of the concern(s), seriousness of the safety & health issue(s) raised, and other factors.
OSHA will maintain strict confidentiality of the individual(s) who filed the complaint, inform them of any action it takes regarding the complaints, and, if requested, hold an informal review of any decision not to inspect. A formal complaint must be submitted in writing (OSHA-7 form) or a phone call by a current employee who alleges a violation.
In many industries, employee complaints are the single most common reason why OSHA will conduct an inspection at a workplace. Employers who take the safety and health of their employees seriously by being responsive to concerns, issues, hazards, etc raised by its employees have a lower risk of being inspected in the first place. (Click here to learn more about the OSHA inspection process).
Although there are some cases where disgruntled (for other reasons) employees file "nuisance" complaints with OSHA (I've seen those happen), the Agency will take all complaints seriously and presumed to have merit until facts suggest otherwise. It is ill-advised for an employer to attempt to determine the identity of the person who submitted the complaint. Doing so only poses risks with zero possible benefit in return. Rather, the employer is best served to focus on the safety and health issues raised to get them resolved without regard to "who" initiated the complaint. If identified, that employee(s) who filed the complaint may expand their claims to include retaliation / discrimination (reprimand, demotion, reduction in pay/bonus, harassment, etc) which could cause OSHA to expand its investigation to include whistleblower protection violations and create a host of other unnecessary distractions and enforcement actions.
I focus so much attention in this post on Complaints because it is the easiest reason for an OSHA inspection to eliminate. Conducting workplace safety and health audits, implementing a safety program, and providing employee safety training that is specific to your operational / business environment are the surest ways to achieve compliance and reduce the risk of an OSHA inspection. Studies have shown that there are also other benefits to safety performance as well, such as lower insurance costs, improved employee morale, lower turnover, and increased productivity.
Some may combine Referrals with Complaints but I think it's important to break them out because there are some important differences with Referral inspections that are worth noting. First, a referral for an OSHA inspection can be originated from a multitude of different sources, not just current or former employees. If you allow public tours of your facility, be 'extra sure' that everything is being done safely. You never know who might be in that tour group who would/could call OSHA if they see workers exposed to serious hazards. A few actual source examples of OSHA referral inspections include:
- Media stories of an accident or unsafe conditions
- Compliance officer driving by a worksite and observes possible violations from the street (not uncommon)
- Other Federal agencies (ie: OSHA and EPA are increasingly collaborating on this method)
- State or local health departments
- State or local police and/or fire departments
- Occasionally, from OSHA's On-Site Consultation services programs
- Employee's personal doctor
#5 Programmed Inspections:
Programmed inspections, which are planned / scheduled OSHA inspections that conceptually follow a 'surprise lottery' site selection process, are aimed at specific high-hazard industries, workplaces, occupations, safety / health hazards, or other site characteristics. Examples of programmed inspection programs include: National or Regional / Local Emphasis Programs (NEP / REP / LEP) and Site Specific Targeting (SST).
SST focuses on workplaces that have reported significantly higher injury rates compared to their peers. The Department of Labor releases a detailed list of these 14,000 workplaces and notifies them of potential inspection(s). Considering that there are 8 million workplaces in the country, the chances that yours is on this SST list is extremely unlikely. If you have not received such a letter (are not on the list), then you have absolutely nothing to be concerned about in terms of being inspected under the SST program.
Keep in mind that when a compliance officer shows up to conduct a SST inspection, they're more likely to have a negative preconception of the site's safety compliance because of the high injury rates reported. In short, they'll tend to be far more observant and inquisitive than usual as they walk through your facility. The number and severity of violations cited in such inspections are higher than the aggregate average. This is why it is very important for employers to maintain accurate OSHA 300/301 Recordkeeping Logs and not over-record/report injuries. For example, many employers over-report by including first-aid cases in their logs.
Some of the current NEPs include Process Safety Management (PSM), Silica, Trenching/Excavation, Hazardous Machinery (Amputations), and Combustible Dust to name a few. These emphasis programs target employers across the country that are in industries where these types of issues may be present. Conversely, REP/LEPs are more geographically focused and currently include such issues as Forklifts, Noise, Dairy Farm Operations, Oil & Gas Operations and Services, Poultry Processing, Construction, Grain Handling, and numerous others (list available here).
#6 Follow Up:
A followup inspection determines if a previously cited employer has corrected the violations received in an earlier inspection. If an employer fails to abate a cited violation, then the employer will be subject to Failure-To-Abate (FTA) violation which involve additional penalties until the violation is corrected ($7,000 per day). A FTA exists when a violation previously cited has never been brought into compliance and is observed in a later inspection. If, however, that violation was corrected only to subsequently reoccur, then the Agency may issue the employer a Repeat violation with a penalty amount of up to ~$125,000.
How to Reduce OSHA Enforcement Risk
There are two aspects to reducing the risks associated with an OSHA inspection. 1) Reduce the likelihood of being inspected and 2) Reduce the severity of possible violations (ie: be in compliance).
1) The best way to reduce the likelihood of an inspection is to prevent serious workplace accidents (fatalities, serious injuries) which, aside from the personal and financial costs, trigger an inspection as well as ensure that employees feel empowered to raise and address safety concerns without fear of reprisal. This will reduce the likelihood that an employee will feel compelled to file a complaint with OSHA instead of raising the concern to be promptly addressed internally.
2) The most effective way to minimize the severity of an inspection is to conduct expert audit(s), implement safety programs, and provide employee training. Prometrix Consulting is proud of its record in that no client site has ever been cited in an inspection after implementing our recommendations.
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