In December 1970, President Richard M. Nixon signed the Occupational Safety and Health (OSH) Act of 1970. This act created the Occupational Safety and Health Administration (OSHA), which formally came into being on April 28, 1971. OSHA’s mission is to ensure safe and healthful working conditions for all working men and women. One of the ways OSHA carries out its mission is by developing job safety and health standards, and enforcing them through worksite inspections.
Every establishment covered by the OSH Act is subject to inspection by OSHA Compliance and Safety Health Officers. The goal of these trained safety professionals is to ensure compliance with OSHA requirements while helping employers and employees reduce on-the-job hazards and prevent injuries, illnesses and deaths in the workplace.
OSHA can’t inspect all the millions of workplaces it covers each year. So what can trigger an inspection? Inspections are focused on the most hazardous workplaces in the following order of priority:
- Imminent danger situations: Any condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately or before the danger can be eliminated through normal enforcement procedures.
- Catastrophes and fatal accidents: Any accident resulting in a death or an inpatient hospitalization, all amputations and all losses of an eye. Employers must report all work-related fatalities within eight hours and all work-related inpatient hospitalizations, amputations and losses of an eye within 24 hours. OSHA will investigate to determine the cause of these accidents and whether existing OSHA standards were violated.
- Employee complaints: Involves receiving complaints of unsafe or unhealthful working conditions from current or former employees or their representatives. The OSH Act gives each employee the right to request an OSHA inspection when the employee believes he/she is in imminent danger or thinks there is a violation that threatens physical harm. OSHA has an established protocol to follow when a complaint is received that results in a formal or non-formal investigation. Employees may request anonymity when they file complaints.
- Referrals: Involves hazard information from other federal, state or local agencies, individuals, organizations or the media.
- Planned or programmed inspections: Aimed at specific high-hazard industries or individual workplaces that have experienced high rates of injuries and illnesses. OSHA may also develop special emphasis programs that are local, regional or national in scope.
- Follow-ups: Determines if the employer has corrected previous cited violations.
Complaints can be received from current or former employees or their representatives via phone, fax, letter or the OSHA website (worker page). If requested, the identity of the complainant is kept confidential throughout the process. Once received, OSHA will determine if there is merit to the complaint to move forward with an investigation.
Two types of investigations may result: Formal: Must be a signed complaint from a current employee who requests an on-site inspection; Non-Formal: Complaint from a current or former employee or their representatives and an on-site inspection is not requested.
If it is determined that a formal investigation will take place, an inspection will be scheduled five days from receipt of the signed complaint. No prior notice is given to the employer. The inspection will be limited to specific complaint items and plain view hazards.
In the case of a non-formal investigation, OSHA will handle the investigation administratively. With permission from the complainant, OSHA will telephone the employer to make them aware of the alleged concern(s), following up with a fax or letter providing details on the alleged concern(s). The employer has five working days to respond back to OSHA, identifying any problems found and noting corrective actions taken or planned. If the response is adequate and the complainant satisfied with the response, OSHA generally will not conduct an on-site inspection. If the employer does not respond, it will be upgraded to a formal investigation.
States with OSHA-approved state plans provide the same protections to workers as federal OSHA, although they may follow slightly different complaint processing procedures.
Prior to inspection, the compliance officer becomes familiar with as many relevant facts as possible about the workplace, taking into account such things as the history of the business, the nature of the business and the particular OSHA standards likely to apply. Preparing for the inspection also involves selecting appropriate equipment for detecting toxic substances, noise, etc.
An inspection begins when the OSHA compliance officer arrives, displays official credentials and asks to meet an appropriate employer representative. An employer has the right to require the compliance officer to obtain a warrant before entering the worksite. In the opening conference, the compliance officer explains why the establishment was selected, the purpose of the visit, the scope of the inspection and the standards that apply. The employer is asked to select an employer representative(s) to accompany the compliance officer during the inspection.
After the opening conference, the compliance officer and employer representative(s) inspect the work area(s). The compliance officer determines the route and duration of the inspection. The compliance officer observes conditions and practices; consults with employees; takes photos, videotapes and instrument readings; examines records; collects air samples; measures noise levels; surveys existing engineering controls; and monitors employee exposure to toxic fumes, gases and dusts. During the inspection, the compliance officer will point out any unsafe or unhealthful working conditions and will discuss possible corrective actions. Some apparent violations detected by the compliance officer can be corrected immediately. When the employer corrects them on the spot, the compliance officer records such corrections to help in judging the employer’s good faith in compliance.
After the inspection, a closing conference is held between the compliance officer and the employer, employees and/or the employees’ representative. Observed unsafe or unhealthful conditions are discussed. Apparent violations for which a citation may be issued or recommended are indicated. Specific proposed penalties are not discussed.
Following an inspection by OSHA, an employer has specific rights and responsibilities. After any inspection, the OSHA Compliance Safety and Health Officer reports his/her findings to their Area Director for evaluation. The Area Director determines whether citations will be issued and/or penalties proposed. OSHA must issue a citation and proposed penalty within six months of the violation’s occurrence. Citations inform the employer and employees of the regulations and standards alleged to have been violated, list any proposed penalties and give a deadline for correcting the alleged hazards. The employer will receive citations and notices of proposed penalties by certified mail.
Willful: A willful violation is one that the employer intentionally and knowingly commits. The employer is aware that a hazardous condition exists and knows the condition violates a standard, but makes no reasonable effort to eliminate it. OSHA may propose penalties of up to $70,000 for each willful violation. The minimum willful penalty is $5,000. An employer who is convicted in a criminal proceeding of a willful violation of a standard that has resulted in the death of an employee may be fined up to $250,000 (or $500,000 if the employer is a corporation) or imprisoned up to six months, or both. A second conviction doubles the possible term of imprisonment.
Serious: A serious violation exists when there is a substantial probability that death or serious physical harm could result from a condition that exists, or from one or more practices, means, methods, operations or processes that are in use unless the employer did not and could not know of the violation. Violations considered serious carry a mandatory penalty of up to $7,000 per violation.
Other-Than-Serious: An other-than-serious violation is cited where the accident/incident or illness that would be most likely to result would probably not cause death or serious physical harm, but would have a direct and immediate relationship to the safety and health of employees. OSHA may impose a penalty of up to $7,000 per violation.
Failure to Abate: A failure to abate violation exists when the employer has not corrected a violation for which OSHA has issued a citation and the abatement date has passed. A failure to abate also exists when the employer has not complied with interim measures involved in a long-term abatement within the time given. These failures may bring a civil penalty of up to $7,000 per day.
Repeated: An employer may be cited for a repeated violation if, upon re-inspection, the same or a substantially similar condition is found and the citation has become a final order. These violations can bring a fine of up to $70,000 for each such violation within the previous three years.
De Minimis: Conditions where an employer has implemented a measure different from one specified in a standard that has no direct or immediate relationship to safety or health. These conditions do not result in citations or penalties.
Upon receipt of any citation (except De Minimis violations), the employer must immediately post the citation (or a copy of it) at or near the place where each alleged violation occurred. If it is not practicable to post the citation at or near each place of alleged violation, then it must be posted in a prominent place where it will be readily observable by all affected employees. The citation must remain posted for three working days or until the violation is abated, whichever is longer. The employer must comply with these posting requirements even if the citation is contested. Violation of the posting requirements results in a fine of up to $7,000 for each violation.
Employers who have been cited can take either of the following courses of action:
- If the employer agrees to the Citation and Notification of Penalty, the condition must be corrected by the date set in the citation and the penalty paid, if one is proposed.
- If the employer does not agree, the employer has 15 working days from the date the citation is received to contest in writing the citation, proposed penalty and/or abatement date.
How Employers Comply
For violations that are not contested, the employer needs to promptly notify the OSHA Area Director via letter stating that appropriate corrective action has been taken within the time frame outlined. A member of management must sign this letter. The employer must also pay any itemized penalties. This letter/notification is referred to as the Abatement Certification.
For other-than-serious violations, the Abatement Certification may be a signed letter identifying the inspection number, the citation item number and noting that the violation was corrected by the date specified.
For more serious violations such as serious, willful, repeat or failure-to-abate, the Abatement Certification requires more detailed proof such as:
- A photograph or videotape of the abated condition
- A copy of an invoice or sales receipt for equipment used to achieve abatement
- A report by a safety and health professional describing actions taken to abate the hazard or describing the results of analytical testing that substantiates abatement
- Documentation from the manufacturer that the article repaired is within the manufacturers specifications
- A copy of a signed contract for goods and services (e.g., for needed protective equipment, an evaluation by a safety engineer, etc.)
- Records of training completed by employees (if the citation is related to training)
- A copy of program documents if the citation relates to a missing or inadequate program, such as a deficiency in the employers respirator program or hazard communication program
OSHA Publication 3000-09R, Employer Rights and Responsibilities following an OSHA Inspection, 2014
OSHA Publication 3302-09R, All About OSHA, 2014
OSHA 2098, OSHA Inspections, 2002 (Revised)
Find even more information you can use to help make informed decisions about the regulatory issues you face in your workplace every day. View all Quick Tips Technical Resources at www.grainger.com/quicktips.
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The content in this newsletter is intended for general information purposes only. This publication is not a substitute for review of the applicable government regulations and standards, and should not be construed as legal advice or opinion. Readers with specific compliance questions should refer to the cited regulation or consult with an attorney.
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