Did you know that….

Every establishment covered by the Occupation Safety & Health (OSH) Act is subject to inspection by OSHA Compliance Safety & Health Officers (CSHOs)?

OSHA has an updated framework for conducting these workplace inspections in light of COVID-19?

Even with OSHA’s updates, your facility could still be subject to a workplace inspection—without any advanced notice?

Inspections and COVID-19

According to OSHA’s Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), OSHA will continue to ensure safe and healthy conditions pursuant to the following framework:

• Where community spread of COVID-19 has significantly decreased, OSHA will return to the inspection planning policy relied on prior to the start of the COVID-19 health crisis. OSHA will use non-formal phone/fax investigations or rapid response investigations where the Administration has historically performed such inspections (e.g., to address formal complaints), as necessary.
• In areas experiencing either sustained elevated or a resurgence in COVID-19 community transmission, Area Directors will exercise their discretion to continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection. Particular attention for onsite inspections will be given to high-risk workplaces. In addition, OSHA will use non-formal phone/fax investigation where doing so can address the relevant hazard(s).

What does this mean? Essentially, OSHA workplace inspections are still being conducted—whether in person or remotely—so it remains important for companies to be prepared.

Inspection Priorities

OSHA focuses its inspection priorities on the most hazardous workplaces—even more so now given the risks associated with COVID-19. OSHA prioritizes inspections according to the following:

1. Imminent danger involves any condition where there is a 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.
2. Fatalities and catastrophes involve situations that have resulted in hospitalization of three or more employees.
3. Programmed high-hazard inspections are targeted at high-hazard industries or workplaces with high rates of injuries and illnesses.
4. Employee complaints/referrals include allegations of hazards or violations from employees or other agencies, individuals, organizations, or the media that may trigger inspections.

What to Expect

If your workplace is subject to an inspection, there is a certain process you can expect to follow. The official start to any OSHA inspection requires the CSHO to display his/her official credentials. Because many inspections take place without advanced notice, this is important for security purposes. The opening conference then follows to discuss the purpose, nature, and scope of the inspection. At this point, the facility gets to select an employee to accompany the CSHO during the walkaround inspection. Employers should give thought to who this individual will be before an inspection occurs.

During the walkaround, OSHA’s representative has the authority to look at everything. Expect the CSHO to take photos and measurements, as well as conduct interviews with other employees. These are private interviews; however, employees have the right to request an employee representative participate in the interview. As the CSHO asks questions and takes notes, it is equally important that the employer representative is also taking notes and photos, documenting requests, and correcting conditions, as appropriate. Prompt correction, if possible, is considered a sign of good faith on the part of the employer.

Questions that the CSHO may ask include the following—be prepared to respond and locate documentation:

• Where are your safety and health programs?
• Who maintains your training records?
• Who maintains your 300 logs?
• Do you have a safety committee?
• How can an employee bring forward a safety issue/concern?
• How are safety issues resolved?
• Do you document hazard abatement?
• Do you have a progressive disciplinary program?
• Do you perform oversight of contractors?

At the completion of the walkaround, the CSHO will hold a closing conference with facility representatives to discuss all findings.

Following the Inspection

After the inspection, the CSHO may follow-up with the facility for additional information (e.g., programs, training records, additional interviews), will review your company’s OSHA history, and will make recommendations for citations. OSHA may invite additional agencies to investigate, if needed, as well. OSHA then has six months from the date of the opening conference to issue any citations. Citations and Notices of Violation (NOVs) from the inspection are sent by certified mail. The facility must post citations for three days or until the violation is abated, whichever is longer.

Violations are categorized, as follows:

• Other than Serious Violation has a direct relationship to job safety and health but probably would not cause death or serious physical harm. Penalty up to ~$13,000 is discretionary – per violation, per day. [BBBA proposed maximum penalty increase to $70,000]
• Serious Violation has substantial probability that death or serious physical harm could result and that the employer knew (or should have known) of the hazard. Penalty up to ~$13,000 is mandatory – per violation, per day. [BBBA proposed maximum penalty increase to $70,000]
• Willful Violation is an intentional violation of the OSH Act or plain indifference to its requirements. Penalty up to ~$134,000 – per violation, per day. If a violation results in death, penalty up to $250,000 for an individual or $500,000 for a corporation and/or imprisonment up to six months. [BBBA proposed maximum penalty increase to $700,000]
• Repeated Violation is a substantially similar violation found upon re-inspection. Penalty up to ~$134,000 – per violation, per day. [BBBA proposed maximum penalty increase to $700,000]

Additional violations may include falsifying records, reports, or applications; failing to post requirements; assaulting a compliance officer or interfering with their duties; and failure to abate a prior violation. Violations can result in financial penalties and, in some cases, in imprisonment.

If violations/citations are issued, the employer has a few options to respond:

• Pay the penalty, provide abatement, and move on.
• Pursue an Expedited Information Settlement Agreement (EISA) to reduce the OSHA penalty amount in exchange for prompt, documented abatement.
• Appeal the citation, abatement, or proposed penalty.

Be Prepared

The best way to be prepared for a workplace OSHA inspection is to make sure you have the processes, programs, and systems in place—and documented—to ensure you are always protecting employees’ safety and health and meeting OSH Act requirements. Having a centralized location, like a Compliance  Management System (CMS),  to track and manage all safety-related information will not only help ensure going compliance but will also provide the documentation required should an inspection occur.

It is also wise to consider and regularly review your responses to the following questions, as they will provide a good indication if you are prepared should an OSHA inspector walk into your facility tomorrow:

• Who is representing your interest?
• Do you have a procedure?
• Do you have your programs together?
• Who will represent your employees?
• Who has the authority to correct hazards?

Finally, good faith goes a long way. If there are issues, fix them and document them. Abatement efforts matter.