How to Survive an OSHA Audit

“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 all industries must comply with OSHA rules and regulations, the most frequently visited industries are : Construction, Cabinet Shops, Machine Shops, Door and Window Manufactures, Wineries and Growers are all prime businesses for a formal visit from CAL/OSHA to determine whether they are complying with Cal/OSHA standards.

There are many specific regulations specific to the work performed by Winery and Growers employees as well as many non-specific rules and regulations.  Cal/OSHA “Heat Injury Prevention Program” is may be the cause of a “sweep” in your area.

As you 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 a visit from a Cal/OSHA Compliance Officer (CSHO).  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 one of the following 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 and or a D.A.R.T. of 4.5 or higher)
• Special enforcement “sweeps” (Heat Injury, Fall Protection – working at heights , Trenching-Excavations operations)
• Labor law enforcement “sweeps” in which industries are often targeted for jointly inspections by other groups such as the State Contractor Licence Board and Worker Compensation.

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 CSHO throughout the entire visit.  The company representative can be anyone you choose to select.  Our advice is to have a pre-selected and trained “Company Representative” to meet with the OSHA CO.  Ensure the company representative and several other pre-selected 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)
• Heat Illness Prevention (HIPP)
• Wildfire Smoke Plan
• 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).
• Hazardous Communication Program (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 (CSHO) 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 CSHO makes.  Take photos of the equipment, item or area in which the CSHO 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.  Though you must answer basic questions, keep your answers short.  Do not expand upon what is asked, do not give more information than that which is asked.

The best answers are “Yes”, “No” and ” I don’t know…I’ll find out”.

When the inspection is completed, the inspection will end with a closing conference. During the closing conference the CSHO will review any apparent violations and discuss possible methods for correcting the violations within a reasonable time period. The COSH will likely 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 exit conference is not the time to debate or argue with the CSHO.

Be cooperative but also be aware of your rights.

Maintain control of the inspection. The CSHO must follow all safety procedures of your facility or site.  This includes wearing the appropriate PPE when conducting the inspection. And no, even though they are a “visitor” you do not have to furnish them were PPE.  If they don’t have the PPE to enter the work area, they cant come in.  But keep in mind, whatever PPE you require them to wear, must be worn by you and the workers in area.

Be professional, answer questions respectfully and most importantly do not offer any “extra” information or explanations.

Contact by a OSHA Compliance Officer (CSHO)

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 be told a half hour, possibly an hour probably not much more than that.    If you need more time to have the safety manager or your legal counsel to be present, you might be able to negotiate with the CSHO or possibly call the OSHA District Manager.  Again, be 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 CSHO 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 but keep your answers short and to the point.  Always keep in mind,  dodo not offer additional information,  it will not likely help you avoid citations. Cooperate as long as the inspector remains ethical and reasonable.

The CSHO will likely ask to interview employees. The CSHO will likely simply act as if the employees must cooperate and be interviewed.  The CSHO will likely tell the employers the “every employee has the right to speak to OSHA, without fear of retribution”.  The CSHO will likely share that the employee can have someone from the Union sit in on the interview if they wish, and possibly even state the “employer” cannot be present.  What most CSHO’s neglect to say id that the employees has the right to “not” speak to the OSHA Inspector.  Employees cannot be compelled to speak with the CSHO, it’s up to employee. Also, your employee may have a company representative (co-worker or supervisor or company attorney), present during the interview.   If your employee agreed to be interview, they should truthful when asked questions and not speculate.

One thing you (employer) should be aware of, is that employees do have whistle-blower rights.  If an employee wishes to “point out” safety issues to the OSHA inspector, you may not take actions against them for doing so.

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 during any interview. At the conclusion of the interview, the CSHO may ask you (person interviewed) to sign a statement or report, it is generally recommended to not sign any document.

Citations

The law requires OSHA to issue citations for safety and health standards violations.  The citations may come anytime within 6 months of the opening inspection.

In California, Labor Code § 6432(b) requires Cal/OSHA to send a “1BY” (form) to the employer prior to issuing a “serious” violation.  The 1BY is a simple form, identifying the alleged violation Standard.  There is a small section for the employer to written a response as to why the employer believes there was no violative condition.  Though this sounds like a reseaonable appropriate, we believe the results will be OSHA will either reissue the citation after reviewing the employers reasons and possibly use what evidence (statements or other information) against the employer during the appeals process.

Since the completion and return of the CAL/OSHA 1BY is voluntary and no adverse inference may be made if the employer does not return the CAL/OSHA 1BY, it is generally advised by both Safety Professionals and OSHA Defense Attorney’s advise against completing and returning the CAL/OSHA 1BY.  Most will tell you that given the fact that the inspector (CSHO) has decided a “serious” violation occurred and one must presume the district manager agrees, hence the issuance of the 1BY; that no information provided by the employer would likely deter the Division from issuing a citation.

When the citation is issued, it will include:

• The Standard which has been violated
• A description (“AVD”) of the alleged violative condition
• The proposed penalty
• The demand for abatement and a 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. Again, keep in mind in most cases, the CSHO will take 90 days and often issue just short of the six month requirement to issue the citation.

Appealing a Citation

The Employer has 15 working days upon receipt to file an intent  to appeal an OSHA citation.  An appeal usually triggers an informal conference with the District Manager to discuss any citations issued.

The 15 days period is a critical timeline.  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 standard cited 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.
• No Employer Knowledge (actual or constructive) of the violation condition.
• The level of the citation is incorrect (Willful, Serious)
• The contention that you are responsible for causing the unsafe conditions is incorrect.
• Independent Employee Action

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 citation(s) the severity and even the amount of 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 inspection here are some tips to help you be prepared and survive your the 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 about OSHA rules and regulations for your workplace contact OSHA Compliance Services LLC, your OSHA Compliance resource.

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