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Could an investigator
from the Occupational Safety and Health Administration (OSHA) show
up to conduct an inspection of your facilities? OSHA has the right
to inspect the premises of any business covered by the Occupational
Safety and Health Act (the OSH Act) to determine compliance with
OSHA standards designed to ensure safe and healthful workplaces.
[Creating HR Policies or Employee Handbook?]
While many inspections are in response to a specific complaint or
accident, they also may be part of a routine compliance audit. You
need to be prepared for the possibility of an inspection,
particularly if you have had any accidents, employee complaints of
safety problems, or are in an industry targeted by OSHA for
compliance efforts. And, as a practical matter, even if you are in a
low-risk industry, you still need to understand the process and your
obligations, since penalties for OSHA violations are severe.
* Most Employers Are Covered *
The OSH Act, found at 29 U.S.C. §§651 et seq., is the primary
federal law regulating safety and health in the workplace. The
"general duty clause" of the Act requires every covered employer to
provide its employees with employment and a place of employment that
are free from recognized hazards which cause, or are likely to
cause, death or serious physical harm. Each covered employer also
must comply with any industry-specific safety and health standards
issued under the OSH Act.
The OSH Act defines a covered employer as any "person" who has
employees and who is engaged in a business affecting trade, traffic,
commerce, transportation, or communications among the several states
or between a state and any place outside the state. The term
"person" is defined as one or more individuals, partnerships,
associations, corporations, business trusts, legal representatives,
or any organized group of persons.
By OSHA's own estimates, the OSH Act covers some 111 million
employees at 7 million workplaces. Accordingly, most private
employers are covered, regardless of the number of employees you
have. However, the Act does not apply to state governments or their
political subdivisions.
* Which Employers Are at Risk *
With 7 million workplaces covered under its requirements, OSHA does
not have the time or resources to inspect every one. In fact, the
agency conducted only 38,714 inspections in Fiscal Year 2005, which
means that only about one-half of one percent of all employers were
targeted.
As a result of its limited resources, OSHA has implemented a
four-prong priority system for inspections that is discussed in its
publication 2098, "OSHA Inspections." The agency conducts
inspections according to the following priorities:
1. Imminent danger. According to OSHA, an imminent danger is "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."
2. Catastrophes and fatal accidents. OSHA's second priority includes
fatalities and accidents that result in a death or the
hospitalization of three or more employees.
3. Complaints and referrals. This category includes formal employee
complaints to OSHA of unsafe or unhealthful working conditions and
referrals from any source about a workplace hazard. Employees can
request an OSHA inspection if they believe that they are in imminent
danger from a hazard or that their employer has committed an OSHA
violation that threatens physical harm.
4. Programmed inspections. OSHA conducts inspections of specific
high-hazard industries, workplaces, occupations, or health
substances. OSHA selects industries for inspection based on injury
incidence rates, previous citation history, employee exposure to
toxins, or even randomly. OSHA has identified seven industries for
programmed inspections, including landscaping and horticultural
services, oil and gas field services, fruit and vegetable
processing, blast furnace and basic steel products, ship and boat
building and repair, public warehousing and storage, and concrete
and concrete products. Other industries often targeted include
construction, nursing homes and health care facilities, industries
with high lead and silica exposure, and meat processing plants.
OSHA also will conduct follow-up inspections to determine if the
employer has corrected previously cited violations. If an employer
has not acted to remedy a violation, the compliance officer will
inform the employer that it is subject to a "Failure to Abate"
notice. This determination triggers additional daily penalties until
the employer corrects the violation.
* The Inspection Process *
Generally, you are not given advance notice of the inspection. Under
special circumstances, including imminent danger situations and
investigations of a fatality or catastrophe, OSHA may give 24 hours
notice.
OSHA personnel are required to present appropriate identification to
the owner of the premises before conducting an inspection and must
conduct inspections at reasonable times, within reasonable limits,
and in a reasonable manner. The OSH Act provides that an OSHA
compliance officer may "enter without delay" any place of employment
and does not specifically require a search warrant before entry.
However, in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), the
Supreme Court ruled that an OSHA inspection may not be conducted
without a search warrant unless the employer consents to the
inspection.
OSHA has provided a detailed, plain-English explanation of its
inspection process in its publication 2098, available online at
www.osha.gov/Publications/osha2098.pdf. That report details who the
inspectors may talk to, what records they may request, and other
procedures they will follow to complete the inspection.
After the inspection, the compliance officer reports the findings
and the OSHA Area Director determines whether to issue citations and
notices of proposed penalties. The citation informs the employer and
employees of any violations and establishes timetables for
correction of hazards. You then can take action to object to the
citation and request further meetings to discuss the findings.
* Risk of Inspection Is Low, But Penalties Are Severe *
OSHA recently announced that it has increased inspections by 7.6%
over the last five years. Still, the vast majority of workplaces
will not face an OSHA inspection.
However, if your organization operates in a high-risk industry, or
if you have a history of accidents or employee complaints, your
chance of being inspected increases substantially. In fact, OSHA
reported a 19.3% increase for Fiscal Year 2005 in programmed
inspections targeting high-hazard workplaces. So, be prepared.
Of course, even if your organization doesn't fit into any of the
high-risk categories, you should be aware of OSHA's inspection
rights and the penalties for any violations of its requirements.
OSHA violations can result in heavy monetary fines, including up to
$7,000 for noncompliance with posting and recordkeeping
requirements, as well as jail time for falsifying records and
reports or interfering with a compliance officer. These penalties
give all employers ample incentive to comply. |
Personnel
Policy Service, Inc.
