News and Information

How to Survive an OSHA Audit

BY Paul Allen,  OSHA Compliance Services

“Hello. I’m from OSHA and I am here to conduct an inspection.”

Next to “Hello I’m from the Internal Revenue Service,” there are few greetings more inclined to cause you to cringe.

Though nearly every business  in California is  subject to a formal visit from CAL/OSHA, not all business are a target of a Cal/OSHA inspection. If or should I say when, how will you fair?  Are you in compliance … or are you complacent ?

As most people know, it is the responsibility of CAL/OSHA to enforce workplace safety regulations.  It is the responsibility for every employer to ensure their employees (contractors and sub-contractors) have a “reasonably safe workplace”.  The following information is a summary of is likely to occur should you be visited by a CAL/OSHA Compliance Officer (CO).  For more information or assistance with your safety and compliance programs, contact us at: www.OSHAComplianceservices.com

 

What triggers an OSHA Audit?

If you’re an odds player, you can take comfort knowing there are numerous businesses and workplaces that never see an OSHA Inspector. Generally, OSHA will only conduct a visit to your business for seven reasons:

  • A fatality or serious injury / Illness ( cause for      about a quarter of all inspections annually)
  • An employee complaint (cause for about a quarter of      all inspections annually)
  • A report of imminent injury or OSHA inspector      observation, which can occur when a hazard is in plain sight (also known      as a “drive by” or “clear view” situation)
  • A follow-up from a previous inspection or citation      (follow-up is usually “to determine whether there has been abatement      of a hazardous condition”)
  • Being an employer in a hazardous industry or being a      hazardous employer (meaning an employer with an experience modification of      over 125)
  • Special enforcement “sweeps” (Heat Injury, Fall      Protection – working at heights , Trenching-Excavations operations)
  • Labor law enforcement “sweeps” in which      industries which may be targeted jointly by other labor law enforcement      groups, such as immigration.

 

Be prepared

Keep in mind that OSHA inspections are generally without notice, so being prepared is the key to success. The first thing you need to know is you have the right to have a “Company Representative” serve as the company contact and accompany the OSHA CO throughout the entire visit.  The company representative can be anyone you choose to select.  Our advice is to have a preselected and trained “Company Representative” to meet with the OSHA CO.  Ensure the company representative and several other preselected employees know where all information is kept and that they are trained and able to explain your safety policies, procedures and recordkeeping.

The following documentation and information should be readily available in anticipation of an impending audit:

  • Injury Illness Prevention Program (IIPP)
  • Safety Manual (Policies and Procedures)
  • Hazard assessment and abatement records (Site      Inspections)
  • Documented training logs
  • Equipment inspection records
  • Recordkeeping (OSHA 300 logs)
  • Review of previous audits and citations and      corrective actions (if appropriate).
  • Third-party audits (if appropriate)

In addition to the routine required safety programs, there are many documents and recordkeeping requirements that OSHA rules do not specifically address.  These documents are referred to as OSHA-implied records and it is the responsibility of the Employer to create one that follows the regulation and conforms with your company safety manual.  For example, although OSHA requires employee to conduct frequent ladder inspections, there is no specific “OSHA Ladder Inspection Form”.  Similarly, a condition of the Forklift Rules requires a pre-inspection report to be documented, but there is no official OSHA Forklift Inspection Form.

The requirement to conduct these inspections is outlined in the regulation but the expectation is that the procedures and written record are company-designed.

 

The Workplace Inspection

After the initial contact and introduction the OSHA Compliance Officer (CO) will begin the inspection with what is known as the “opening conference”.  He will tell you why he is there and what the basic process will be.  Most likely the next step will be a review of required written programs and documentation. This includes your Safety Programs (Safety Manual, IIPP, Heat Injury Awareness Prevention Program, and other OSHA-required programs) Recordkeeping and training records.

It is wise to document the inspector’s actions and comments during the inspection.   You are allowed to photograph (video or still) the inspection if you wish.  It is generally recommended that you take detailed notes of any comment or observations the CO makes.  Take photos of the equipment, item or area in which the CO makes an observation.  Your photos and detailed notes will help your staff understand what transpired and will assist your safety professional or attorney should you contest the citation or penalty.  Items you should record in your notes should include:

  • The inspector’s name, title, telephone number and      email address (covered in the “opening conference” meeting)
  • The reason stated for the inspection (covered in the      “opening conference” meeting)
  • The attendees at the opening and closing conferences
  • The documents that the inspector reviewed (note you      are not required to give copies at this time)
  • The areas that were inspected
  • The employees and (union) representatives who      participated
  • The dates and times when the inspector was on site

Remember, it’s your facility and you have rights.  Maintain control of the inspection. The CO must follow all safety procedures and wear the appropriate PPE when conducting the audit.  Be professional, answer questions truthfully and most importantly do not offer any “extra” information or explanations.

When the inspection is completed, the inspection will end with a closing conference. During the closing conference the CO will review any apparent violations and discuss possible methods for correcting the violations within a reasonable time period. The CO will explain that the violations found may result in a citation and a proposed financial penalty, then describe the employer’s rights and answer all questions.

Always keep in mind the closing conference is not the time to debate or argue with the CO.

 

Be cooperative but also be aware of your rights.

Contact by a OSHA Compliance Officer can be made at a job-site or at your place of business.  In either case, your staff needs to know who within your company needs to be contacted and what to say or more importantly what “not” to say.  Upon the initial contact with the OSHA Compliance Officer, your designated company representative needs to be notified and dispatched to meet the Compliance officer.  You are entitled “reasonable time” to have a representative from Management be contacted and travel to your location.  “Reasonable time” is subject to interpretation, so be prepared to settle for an hour or two, maybe three.  If you need to gain more time to afford the safety manager or counsel to be present, you might be able to negotiate with the CO or possibly call the OSHA District Manager and politely explain why you need more time. Sometimes it’s a simply as stating it’s your company policy to “wait” until the company representative arrives.

Though it is your right, it’s not generally recommended that you require the CO to obtain a warrant before entry. Again, it is your legal right to ask for a warrant but this might trigger a more rigorous audit and possible give the impression you are hiding something.  It’s wiser if you simply work with the inspector. Answer questions honestly and fully, but don’t offer additional information unless it will help you avoid citations. Cooperate as long as the inspector remains ethical and reasonable.

The CO may also want to interview employees. It’s up to your hourly employees if they want company representation during the interview.   Your employees should cooperate and be truthful.  One thing you should be aware of is that employees do have whistle blower rights.

As for management and supervisor interviews, always have another manager or your counsel present during the interview. If there is a fatality or serious injury investigation, your attorney should always be present. At the conclusion of the interview you will probably be asked to sign a statement or report.

Citations

The law requires OSHA to issue citations for safety and health standards violations. If you are issued a citation it will include:

  • A description “with particularity” of the violation
  • The proposed penalty if any
  • The date by which the hazard must be corrected.

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.

The Employer has 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. Beware that failure to submit your intent to appeal within the 15 days period may cause you to lose your right to appeal.

Common causes to dispute citations include:

  • The citation is incorrect
  • The citation’s dollar penalty is excessive (yes, this is a legitimate dispute)
  • You disagree with the citation’s contention that a dangerous  condition / exposure existed, or that an accident was likely to occur
  • The level of the citation is incorrect (Willful, Repeat, Serious, General)
  • Employer knowledge of the alleged hazard.
  • The contention that you are responsible for causing the unsafe conditions is incorrect.

Contesting citations is considered by most safety professionals a good idea. Though you may not always get the citation completely dismissed, you are in a better position to negotiate the CO’s finding, the severity of the citation and even the fine.

No matter if you contest the citation or not, the most important action you can take is to abate any hazardous or unsafe condition as soon as possible.  Document (writing and photos) any corrections or proof the hazardous – unsafe condition no longer (or never) exists.   Abating the hazardous conditions not only make the workplace safe, but it will also stop the clock on the number of days the violation occurred.  Additionally OSHA typically lessens the penalty amount under the “good faith” rule if the employer shows corrective actions have occurred.

 

Summary

 

If you do become the subject of an OSHA audit here are some tips to help you be prepared and survive your OSHA audit.

Be prepared for an inspection by making sure you have a plan in place in the event of an OSHA inspection. Your plan should include:

  • Identifying who will represent your company
  • A determination if you will ask for a warrant
  • Document what occurs during the inspection
  • Ensure all pertinent documentation such as written      programs, training records, inspection records, etc. are readily  available.
  • Train your staff on your plan.

There is no way to avoid an OSHA inspection, but you can be prepared when it happens.  If you not already doing so, conduct routine site inspections for known and suspected hazards and abated them.  Review your Safety and Compliance Programs to ensure they are up to date and address the appropriate items and issues.  Train your employees, contractors and sub-contractors on your safety policies and procedures.

For more information on OSHA rules and regulations for Wineries and Growers, contact OSHA Compliance Services LLC at (916) 715-8052 or visit or website at www.OSHAComplianceservices.com

The content of this article is intended to provide a general information on the subject matter. Professional advice should be sought regarding any of your specific circumstances.

 

Contact OSHA Compliance Services for assistance with your Safety and Compliance needs.

Charles Kosmerl

CKMilcop@earthlink.net

(916) 715-8052