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How to Survive an OSHA Audit
Presented By:Jim Rhoad
Inspection Priorities• Imminent danger• Catastrophes & Fatal
Accidents• Worker complaints and
referrals• Targeted inspections - high
injury/illness rates, severe violators
• Follow-up inspections
Imminent danger
Catastrophes & Fatal Accidents
Worker complaints and referrals
• Disgruntled employees• Legitimate complaints• Union organizers• Whistleblower
Investigator
Targeted inspections - high injury/illness rates, severe violators
• Targeted Industry• High Incident and Dart
Rate • Severe Violators
Follow-up inspections
• Post the citation as required?
• Correct the violations as required?
• Protected employees adequately?
Inspection Process by Compliance Officer
• Prior to inspection• Preparing for the
inspection
THE OSHA AUDIT: 4 Parts
1. Knock at the Door2. The opening
conference3. The
walk-around/inspection
4. The closing conference
The Audit: 1 - Knock at the Door
Hello I am from OSHA and I am here to help you…
• Plan for an inspection by making sure you have three key items in place prior to the arrival of the OSHA compliance officer (CO):– A determination if you will ask for a
warrant– A form to document what occurs during
the inspection– All pertinent documentation such as
written safety programs, training records, inspection records, etc.
Tip• We recommend you do not require
the CO to obtain a warrant before entry unless you need to gain time, such as when a manager or counsel needs to be present. It is your legal right to ask for a warrant but this might trigger a stricter audit (and raise possible red flags)
The Audit: 1 - Knock at the Door
• Escort Compliance officer to waiting area while you gather your team and documents.
• An OSHA compliance officer carries U.S. Department of Labor credentials – ask to see them.
Tip• Have a form available to record CO
information and what transpired during audit
Audit:2 - The opening conference
• In the opening conference, the compliance officer (CO) explains– why the establishment was selected. – the purpose of the visit– the scope of the inspection– the standards that apply.– The employer will be given a copy of any
employee complaint that may be involved.
• The employer is asked to select an employee representative to accompany the compliance officer during the inspection.
Tip
Treat the CO in a professional fashion, coordinate with on-site contractors and vendors and bring up any trade secret issues you may have.
Audit:2 - The opening conference
• If there is a plant safety committee, the employee members of the committee will designate the employee representative (in the absence of a recognized representative)
• Where neither employee group exists, the employee representative may be selected by the employees themselves, – or the compliance officer will
determine if any employee suitably represents the interest of other employees.
Tip
Create a written policy for OSHA inspections that covers:1. who will represent the
company and in case of absence who will be replacement
2. a statement on warrantless OSHA searches (if needed)
Audit:3 - The walk-around/inspection
• Inspecting work areas for compliance with OSHA standards– Have company representation with CO
• CO will point out to the employer any unsafe or unhealthful working conditions observed – Take notes and have fix violations if
possible– If CO takes a picture you take the same
picture• Trade secrets observed by the compliance
officer must and will be kept confidential. $1,000 fine and/or one year in jail for releases confidential information– The employer may require that the
employee representative have a security clearance for any area in question.
Audit:3 - The walk-around/inspection
• The CO may want to interview employees. Make sure to schedule these interviews away from your work area.
• It’s up to hourly employees if they want company representation during the interview. Advise the employee of his/her rights, your appreciation of their cooperation, and to tell the truth.
TipMake sure you have an employee representative attend the entire inspection and take accurate notes on areas reviewed and all discussions and comments from the CO, as well as any photos, videos. • This will assist your attorney
in contesting a citation
Audit:3 - The walk-around/inspection
• Here are some other items to have prepared prior to inspection:– Documented training logs/records– Recordkeeping– Equipment inspection records– Safety and health Program (written)
• integral part of any OSHA inspection– Review of insurance and third party
audits– Hazard assessment and abatement– Review of previous audits and citations.– Copy of the totals from the last page of
OSHA No. 300 has been posted – OSHA poster is prominently displayed
Tip
• Create a Self Inspection checklist for employees to complete weekly or monthly.
Audit:3 - The walk-around/inspection
Record Keeping & Safety Plan: The following standards require a written plan or program in place where applicable to the business:Emergency Action Plan 1910.38Fall Protection 1926.501Hazard Communication 1910.120Respirator Program 1910.134Permit-Required Confined Space Program 1910.146Lockout/Tagout 1910.147Personal Protective Equipment 1910.1632Powered Industrial Trucks 1910.178Electric Power Generation, Transmission and Distribution
1910.269
Electrical Safety-Related Work Practices 1910.333Bloodborne Pathogens: Exposure Control Plan 1910.1030Hazard Communication Program 1910.1200Subpart Z–Specific Chemical Substances 1910.1000 to 1910.1450 Appendi
x B
Posting and Citations Job Safety and Health Poster Form 3165
Accidents, Injuries and Deaths 300 Log
Tip• Understand the law
(consult 29 CFR 1910, general industry standards)
• Have documents easily accessible and written– In OSHA’s mind if its not
documented it probably didn’t happen.
Audit:4 - The closing conference
• The CO will review any apparent violations and discuss possible methods for correcting them. – If possible correct them while he
is there
• The CO will explain that the violations found may result in a citation and a possible financial penalty, then describe the employer’s rights and answer all questions.
Audit:4 - The closing conference
• 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. Employers have 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.
• The citations include:– A description “with particularity “of
the violation– The proposed penalty if any– The date by which the hazard must
be corrected
TipRemember, this is not a time for debate. The law requires OSHA to issue citations for safety and health standards violations.
Citations
• Other Than Serious Violation
• Serious Violation• Willful Violation• Repeated Violation• Failure to Abate Prior
Violation• De Minimis Violation
Other Than Serious Violation
• Other Than Serious Violation - A violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm
Serious Violation
A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard.
Willful Violation A violation that the employer knowingly commits or commits with plain indifference to the law. The employer either knows that what he or she is doing constitutes a violation, or is aware that a hazardous condition existed and made no reasonable effort to eliminate it.
Repeated Violation • A violation of any standard,
regulation, rule, or order where, upon re-inspection, a substantially similar violation can bring a fine of up to $70,000 for each such violation. To be the basis of a repeated citation, the original citation must be final; a citation under contest may not serve as the basis for a subsequent repeated citation.
Failure to Abate Prior Violation
Failure to abate a prior violation may bring a civil penalty of up to $7,000 for each day the violation continues beyond the prescribed abatement date.
De Minimis Violation De minimis violations are violations of standards which have no direct or immediate relationship to safety or health. Whenever de minimis conditions are found during an inspection, they are documented in the same way as any other violation, but are not included on the citation.
Citations
• The employer will receive citations and notices of proposed penalties by certified mail. – employer must post a copy of each citation
at or near the place a violation occurred, for three days or until the violation is abated, whichever is longer.
• Common causes to dispute citations include:– The citation is false– The citation’s dollar penalty is excessive– You disagree with the citation’s contention
that the danger was real, serious, and that an accident was likely to occur
– The contention that you are responsible for causing the unsafe conditions
Source http://www.grainger.com/content/qt-inspection-practices-policies
Citation Flow Chart
Contesting Citation:Un Preventable Employee Misconduct
• Shifting liability back to employee.
• The premise is that is would be unfair to cite the employer who has promoted safety, trained his employees for something that could not be prevented. (essentially what an accident is)
Contesting Citation:
The OSHA Field Operations Manual says to prevail on the affirmative defense of “Unpreventable Employee Misconduct –the employer must show that it…
Employee Misconduct 1. Established a work rule adequate to
prevent the violation (Safety Policy)2. Effectively communicated the rule to
employees; (Training, safety committees, signed agendas or quizzes)
3. Established methods for discovering violations of work rules, and yet did not know about an isolated violation of the work rules; and (Audits dates and findings)
4. Established effective enforcement of the rule when violations are discovered (discipline policy in handbook and document discipline even verbal)
1- Create a written Safety Policy
• Must address the hazards most frequently encountered by your employees.
• Work rules must be as strict or stricter than the OSHA standards.
• Work rules need to be in writing. • Work rules should be distributed to
all– Have employees sign and agree (Handbook
and Safety Policy)
• General Standards in Safety Policy
2) Communicate the rules to your employees
• Ensure new employees are properly trained prior to being sent to work. – Examine your orientation program:
New Hire and Worker Transfer– No “grace period” granted by OSHA
for new employees.– Signed Forms for safety policy and
handbook• Continued training-Risk Management
– Videos, personal reviews or work– Educate employee regarding most
frequently encountered hazards– Industry specific risks– Review portions of work rules and
OSHA standards– Distribute hand-outs
2) Communicate the rules to your employees
• Maintain documentation– date, names of individuals in attendance,
trainer, translator, detail specific topics covered, job site or location of class
– Hold class in Spanish as well as English
• Safety Committees– Management should run or be involved– maintain strict records of meeting
agendas, sign in sheet and subject matters– Discipline supervisor for failure to hold
meeting or for failure to return documentation in timely manner
• Periodically use guest speaker or do demonstration to enforce safety – Insurance Agent, Risk Manager– Other Vendor- Fleet Safety, Hi-Los,
Wellness Coaches, OSHA Consultants
3) Take Steps to Discover Violations• Safety inspections, walkthroughs,
audits – Detect hazard
• written up hazards condition and abatement taken
– Detect work rule violation • write up employee(s)
• Use other resources to do periodic safety inspections– Company safety representative– Top company management officials– Worker compensation carrier– General liability carrier– Outside consultant/auditor– Sub-contractor– Question laborers
4. Discipline: Enforce and document violations
• Does your company have a disciplinary system?– Is it in writing?– Is it in or referenced in the work rules?
• Do the employees know they can be disciplined for violation of work rules?
• Do the supervisors know they can, and will be disciplined for failing to discipline an employee for violating the work rules?
• Do you document verbal warnings?• Do you track discipline?• Have you suspended or terminated an employee for violating
your safety rules?• Are employees aware that other employees have been
disciplined for violating work rules?• Your safety program must enforce the safety rules
– Document discipline
Prove the Un Preventable Employee Misconduct
QUESTION: OSHA cited my company because an employee was found not wearing safety glasses. There is no dispute the employee was not wearing the glasses, or that it was required (it is), but the employee was violating our strict safety glass policy. Do we have any defenses?
To have evidence to prove the Un Preventable Employee Misconduct defense you need to demonstrate that:1. Employer has an established PPE policy that addresses
the type of PPE for which the employer was cited;2. All employees (including the employee who was found
not wearing the PPE) have been trained on the PPE policy;
3. Employer conducts regular audits of the workplace to ensure employees are following the PPE policy
4. Employees are disciplined when they are found to be in violation of the PPE policy (or other safety rules).
Roofer - FALL
• Accident prevention program – not developed
• No person certified in first aid
• Inadequate fall protection
• Fall protection training not certified
Laborer – CAUGHT IN
• Accident prevention program – not properly maintained
• PPE – no hard hats in use• Excavated trenching &
shoring – excavated material stored at edge
• Excavated trenching & shoring – sides not sloped or supported
Pipefitter - EXPLOSION• Accident prevention
program – not coordinated with employees
• Welding/cutting in an area that contains explosive atmosphere
• Atmosphere not tested• Cracks/holes not covered
were sparks could pass • And more
Poor Safety has ConsequencesMeet Kristi Fries
• Lost her arms in 110 ton press• Employer knew press was faulty• She sued and won large
settlement• Fined $360,000 by OSHA• Company went out of business
costing 50 families their jobs
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