Having recently participated in an on site OSHA (Occupational Safety & Health Administration) investigation following a serious accident at an Employer’s facility, I gained some insight for Employers on OSHA matters.
Having recently participated in an on site OSHA (Occupational Safety & Health Administration) investigation following a serious accident at an Employer’s facility, I gained some insight for Employers on OSHA matters. Within hours of the accident, OSHA arrived on the scene and began their analysis of health and safety issues. The focus of the investigation was helpful for addressing safety concerns with the Employer sooner rather than later. Following are some guidelines for Employers who find themselves dealing with OSHA.
Typically, the OSHA inspector, investigator or compliance officer will conduct interviews of employees and management after an accident or report of noncompliance with safety policies. OSHA has the authority to interview employees of the company in private.
Safety and health inspectors shall be in charge of inspections and may interview any employee in private if the inspector deems it necessary . . . 29 CFR § 1960.27(a). [Code of Federal Regulations].
The rationale is to allow employees to feel less inhibited by the presence of management or other company representatives. Presumably, it promotes honesty with the OSHA investigator.
While neither members of management nor counsel for an Employer may be present during employee interviews; counsel for the Employer may be present during interviews with management or representatives of the Employer who have knowledge of safety policies and training.
Documenting in employee training files for important health and safety information is crucial. Routine practice such as yearly employee medical evaluations, monthly training on machines/equipment and periodic training on personal protective equipment (PPE) are areas of particular concern with OSHA. The inspectors want to see that employee files are kept current with information such as how often the employees participate in safety training and whether their training entails all aspects of safety and health for the jobs they are required to perform. The OSHA inspector also wants to ensure that any mandatory personal protective equipment is periodically inspected for fitness for its intended use, accounted for and fits each employee properly. For instance, certain equipment such as respirators require fit testing each year.
OSHA focuses largely on how an Employer documents their assurance that employees are in compliance with safety procedures and that employees are aware of potential dangers on the job. Documenting the employee files with training dates and then having the employees sign and date when they receive training is a good practice.
3. Site Inspection
Once OSHA begins to physically inspect the facility, a representative of the Employer such as a member of management and/or counsel for the Employer may accompany the investigator.
Compliance Safety and Health Officers shall be in charge of inspections and questioning of persons. A representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace for the purpose of aiding such inspection. . . 29 CFR § 1903.8(a).
The OSHA inspector does not necessarily have to give notice of their intent to conduct a site inspection except under certain specific conditions. These are outlined in more detail under 29 CFR § 1903.6.
After OSHA finishes the onsite employee interviews and facility inspection, Employers should be proactive in addressing any safety or training issues revealed during the process. It could take the OSHA investigator several weeks or months to issue a final report, give citations and impose penalties. 29 CFR 1903.15(b) provides insight into what factors OSHA will consider for the imposition of penalties.
One of the factors is whether the Employer begins taking immediate action to correct problems. This will not necessarily alleviate a fine, but it could help mitigate the amount during an appeal process. OSHA encourages making safety changes for areas of concern immediately without regard to the final report. OSHA has the authority to inspect without notice so they could reappear on site randomly to see what, if anything, is changing before citations are issued.
Other factors include whether the Employer has been cited before for the same or similar issues and whether the violation is willful. This period after the inspection, but before the final report, is a good opportunity for an Employer to potentially mitigate fines later during any appeal process.
Management should take steps to show cooperation and compliance with all phases of an OSHA investigation. Establishing a good rapport with OSHA facilitates open communication about their concerns and offers opportunities to ask questions about implementing appropriate safety and health programs.