OSHA, Cal OSHA and Inspections

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OSHA, Cal OSHA and Inspections
OSHA, Cal OSHA Inspections

• Health and Safety Management
• Spring 2010
• Professional Certificate in Human Resources

Tom Brandon, CPP, CUSA O (619) 749- 179 F (619)
749-0182 fortressec_at_cox.net
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OSH ACT

• Public Law 91-59684 STAT. 159091st Congress,
  S.2193December 29, 1970
• An Act
• To assure safe and healthful working conditions
  for working men and women by authorizing
  enforcement of the standards developed under the
  Act by assisting and encouraging the States in
  their efforts to assure safe and healthful
  working conditions by providing for research,
  information, education, and training in the field
  of occupational safety and health and for other
  purposes.Be it enacted by the Senate and House
  of Representatives of the United States of
  America in Congress assembled, that this Act may
  be cited as the "Occupational Safety and Health
  Act of 1970."

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OSHA FACTS -- AUGUST 2008

• The Occupational Safety and Health
  Administration aims to ensure employee safety and
  health in the United States by working with
  employers and employees to create better working
  environments. Since OSHA's inception in 1971,
  nonfatal occupational injury and illness rates
  have dropped 60 percent, while occupational
  fatality rates have fallen to the lowest annual
  preliminary total since 1992. At the same time,
  U.S. employment has doubled to nearly 115 million
  private sector employees at over 8 million
  worksites.In Fiscal Year 2008, OSHA has 2,186
  employees. The agency's appropriation is 490.3
  million.OSHA uses a variety of proven
  intervention strategies to accomplish its
  mission. This balanced approach includes 1)
  strong, fair and effective enforcement 2) safety
  and health standards and guidance 3) training
  and education and 4) cooperative programs,
  compliance assistance and outreach.
• http//www.osha.gov/as/opa/oshafacts.html

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OSHA FACTS

• Duties (a) Each employer -- (1) shall furnish
  to each of his employees employment and a place
  of employment which are free from recognized
  hazards that are causing or are likely to cause
  death or serious physical harm to his
  employees(2) shall comply with occupational
  safety and health standards promulgated under
  this Act.29 USC 654(b) Each employee shall
  comply with occupational safety and health
  standards and all rules, regulations, and orders
  issued pursuant to this Act which are applicable
  to his own actions and conduct.

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Region 1 Region 2 Region 3 Region 4
OSHA Regions
Region 8 Region 9 Region 10
Region 5 Region 6 Region 7
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WHAT IS A STATE OSHA PROGRAM?
Section 18 of the OSH Act of 1970 encourages
States to develop and operate their own job
safety and health programs. OSHA approves and
monitors State plans and provides up to 50
percent of an approved plan's operating
costs There are currently 22 States and
jurisdictions operating complete State plans
(covering both the private sector and State and
local government employees) and 4 - Connecticut,
New Jersey, New York and the Virgin Islands -
which cover public employees only. (Eight other
States were approved at one time but subsequently
withdrew their programs). States must set job
safety and health standards that are "at least as
effective as" comparable federal standards. (Most
States adopt standards identical to federal
ones.) States have the option to promulgate
standards covering hazards not addressed by
federal standards.
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STATES JURISDICTIONS OPERATING STATE PLANS

• AlaskaArizona
• California
• Connecticut
• Hawaii
• IndianaIowa
• KentuckyMarylandMichigan
• MinnesotaNevadaNew Jersey

• New MexicoNew York
• North CarolinaOregonPuerto RicoSouth
  CarolinaTennessee
• UtahVermontVirginia
• Virgin Islands
• WashingtonWyoming

www.osha.gov/fso/osp/faq.htmloshaprogram
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OSHA Facts

• Two Divisions of Cal OSHA
• Compliance
• Consulting

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UNDER THE ACT

• An OSHA Compliance Officer is authorized to
• "Enter without delay and at reasonable times any
  factory, plant, establishment, construction site
  or other areas, workplace, or environment where
  work is being performed by an employee of the
  employer" and to
• "Inspect and investigate during regular working
  hours, and at other reasonable times, and within
  reasonable limits and in a reasonable manner, any
  such place of employment and all pertinent
  conditions, structures, machines, apparatus,
  devices, equipment and equipment therein, and to
  question privately any such employer, owner,
  operator, agent or employee."

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UNDER THE ACT

• Nearly all inspections are conducted without any
  advanced notice. However, when advance notice of
  an inspection is given, the employer must inform
  his or her employees representatives or arrange
  for OSHA to do so. OSHA usually does not have a
  warrant for an inspection when they first arrive
  and may not conduct warrantless inspections
  without an employers consent.

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OSHA

• If an OSHA Compliance Officer arrives at your
  door to conduct an inspection, the following
  procedures should be followed

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OSHA

• Ask the Compliance Officer for credentials a
  badge or identification card specifying that the
  person is an agent of OSHA.
• Should you ask whether the Compliance Officer has
  a warrant for the inspection?
• Before an inspection, the Compliance Officer will
  conduct an opening conference, during which the
  Compliance Officer explains why he or she is
  there and what he or she wishes to do. Ask the
  Compliance Officer to wait while you assemble the
  appropriate people for the opening conference. Do
  not leave the Compliance Officer alone in the
  lobby, meeting room or an office.

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OSHA

• Should you ask whether the Compliance Officer
  has a warrant for the inspection?
• Requiring a warrant can give you time to make
  corrections if you have a problem that can be
  quickly resolved. It can also allow you time to
  do a quick review of the worksite to determine
  whether it complies with all OSHA regulations.
• But there are disadvantages to the approach.
  Forcing the inspector to take the extra steps of
  obtaining a warrant is likely to result in a more
  thorough inspection. Plus, if your company has a
  reputation for requiring a warrant, OSHA
  inspectors will come prepared with one in hand.

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OSHA

• Contact Senior Management
• Do not begin the opening conference without a
  representative from local management present.
• Contact department managers and inform them of a
  pending OSHA inspection. Ask the department
  mangers to ensure safety and health conditions
  are meeting best operating practices.
• After the opening conference, the Compliance
  Officer will most likely conduct a walk-around
  inspection. Management representatives must
  accompany the Compliance Officer during the
  inspection.

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OSHA

• The inspection could include interviewing
  employees, physically inspecting the workplace
  and reviewing records. The inspector will look to
  see if your company has a safety and health
  program. He or she will want to know about any
  safety training.
• Answer questions about specific programs by
  providing written copies of policies, procedures
  and practices. Give the Compliance Officer want
  they ask for and nothing else.
• All safety and health programs should be in
  writing, but if they are not you should tell the
  inspector what is required of employees.
• Emphasize that safety and health policies and/or
  rules are strictly enforced and employees or
  management personnel can be disciplined if safety
  violations are observed.

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WHEN OSHA KNOCKS

• Except for hazards and violations the Compliance
  Officer observes during the inspection, the
  inspection should be limited to the hazards
  alleged in the complaint.
• When a Compliance Officer enters any
  establishment, field network operations, or other
  areas of the workplace or environment where work
  is being performed they can

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WHEN OSHA KNOCKS

• Inspect and investigate during regular working
  hours or other times any such place of employment
  and all pertinent conditions, structures,
  machines, apparatus, devices, equipment, and
  materials and
• Question privately any employer, manager,
  contractor or employee during an inspection or
  investigation.
• A Compliance Officer wanting to interview a field
  or network operations employee must be
  accompanied by a local manager.

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WHEN OSHA KNOCKS

• OSHA may expand the scope of the investigation
  depending on findings.
• As an example, the OSHA Compliance Officer may
  identify industrial hygiene concerns during an
  inspection, but lack the instruments or
  qualifications to investigate the situation. The
  Compliance Officer may then make a referral to
  have a health inspection performed.

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WHEN OSHA KNOCKS

• After the inspection, management representatives
  should meet to discuss the outcome and plan for
  action, as needed.
• If a notice of violation is received, it must be
  posted in the area of the offense for at least
  three days.
• Before paying any fines issued by OSHA, consult
  with counsel.

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The 1980 Mercury Services, Inc. CaseAn
Independent Act by the Employee

• The five elements of the defense are
• The employee is experienced in the job being
  performed.The amount of experience and time
  needed to become experienced varies with the job.
  Generally speaking, it is harder to prove this
  element if the employee is a new hire.
• The employer has a well-devised written and
  active safety program which includes training
  employees in matters of safety respective to
  their particular job assignments.This element
  looks to the employer's safety program overall.
  If it is weak, and especially if OSHA has
  concluded that the program is ineffective, the
  employer loses.
• The employer effectively enforces its safety
  program.Very similar to 2. Where 2 is focused
  on your written program, however, this element
  looks at your actual records of training,
  inspections and attention to fixing identified
  hazards.

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The 1980 Mercury Services, Inc. CaseAn
Independent Act by the Employee

• An Independent Act continued
• The employer has a policy which it enforces of
  sanctions against employees who violate the
  safety program.OSHA will be looking to see if
  you have disciplined your employees. Most
  employers lose on this point because they cannot
  document disciplinary actions before the incident
  leading to the citation in issue.

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The 1980 Mercury Services, Inc. CaseAn
Independent Act by the Employee

• An Independent Act continued
• The employee caused a safety infraction which he
  or she knew was contra to the employer's safety
  requirement. This element requires proof of two
  things The safety rule that the employee broke
  (which led to the violation), and that the
  employee knew that what he or she was doing
  violated your rule. This will be easy... if you
  have written or documented proof that the rule
  existed before the incident. Employee knowledge
  in two ways.
• First, the employee can confess that he or she
  knew that what they were doing was wrong, but
  rare in the real world.

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The 1980 Mercury Services, Inc. CaseAn
Independent Act by the Employee

• An Independent Act continued
• Second, you can prove this element by inference
  from the evidence proving first two elements
  that is, the employee was trained in the job and
  was experienced in the job, and you can show that
  you have administered and enforced your safety
  program, OSHA can then infer that the employee
  knew that what he or she was doing was against
  your wishes.
• This defense is viable if you can prove that you
  have been pro active. Also, the employee in
  question cannot be a supervisor (foreman or
  above), because they are deemed to be acting for
  management.

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WHEN OSHA KNOCKS

• Types of Inspections
• There are five types of inspections that OSHA
  conducts. These are listed in their order of
  importance, as determined by OSHA
• Imminent Danger - Imminent danger situations are
  given top priority. 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. When an imminent
  danger situation is found, the Compliance Officer
  will ask the employer to voluntarily abate the
  hazard and to remove endangered employees from
  exposure. Should the employer refuse, OSHA will
  apply to the nearest federal District Court for
  legal action to correct the situation.
• 2. Catastrophic and Fatal Accidents - Second
  priority is given to investigation of fatalities
  and catastrophes resulting in hospitalization of
  three or more employees.

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WHEN OSHA KNOCKS

• Types of Inspections - continued
• 3. Employee Complaints - Each employee has the
  right to request an OSHA inspection when the
  employee feels that he or she is in imminent
  danger from a hazard or when he or she feels that
  there is a violation of an OSHA standard that
  threatens physical harm. If the employee so
  requests, OSHA will withhold the employees name
  from the employer.
• 4. Programmed High Hazard Inspections - OSHA
  establishes programs of inspection aimed at
  specific high hazard industries (accident rate or
  experience modification rate), occupations, or
  health hazards. Workplaces are selected for
  inspection on the basis of death, illness and
  injury rates, employee exposure to toxic
  substances, and the like.
• 5. Re-inspections - Establishments cited for
  alleged serious violations may be re-inspected to
  determine whether the hazards have been
  corrected.
• Justification for any given visit may be
  different in various states since some states
  come under federal OSHA and other states come
  under their own state plans.

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WHEN OSHA KNOCKS

• In order to have the most "effective"
  inspection, the following suggestions should be
  considered
• Answer any questions truthfully, without directly
  admitting guilt. Never knowingly give false
  statements or intentionally mislead a Compliance
  Officer. If you do not know the answer to a
  question, explain that you are not certain and
  that you will look into the matter further, as
  necessary.
• Be concise when responding to questions. Do not
  offer information unless asked for it.

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WHEN OSHA KNOCKS

• "effective inspection continued
• Do not talk about accidents or incidents that
  have occurred in the past unless specifically
  asked to do so.
• If the Compliance Officer takes a photograph,
  measurements, etc. you should copy their action.
• Dont be afraid to ask what or why they are
  looking at something.
• Be courteous. Do not be rude to the Compliance
  Officer or argue with him or her.

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WHEN OSHA KNOCKS

• "effective inspection continued
• Fix or correct whatever you can during the
  inspection. OSHA has a quick fix program that
  drastically reduces the amount of the penalty.
• OSHA has the right to speak to employees in
  private, so be prepared for them to ask you to
  step aside while they interview your employees.
• Do not discuss political views regarding OSHA or
  the government.

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CLOSING CONFERENCE

• OSHA should offer, or you should request, a
  closing conference. This can occur the day of the
  initial visit, sometimes days or weeks after the
  inspection, especially if OSHA is waiting for
  information from you or others.
• OSHA should disclose the potential violations
  they found during the closing conference. If you
  have information that contradicts the violation,
  present it during the closing conference.
• Eliminating violations during the initial visit
  or in this part of the process is easier than
  waiting until the violations are issued.

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CITATIONS AND PENALTIES

• After the OSHA Compliance Officer reports
  findings to his or her office, the area district
  manager or director along with the Compliance
  Officer determines what citations, if any, will
  be issued and what penalties will be proposed.
  The types of violations and penalties which may
  be proposed are
• 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. The maximum proposed
  penalty for this type of violation is 7000.
• 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. The
  maximum proposed penalty for this type of
  violation is 7000. Imminent danger situations
  are also cited and penalized as serious
  violations.

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CITATIONS AND PENALTIES

• continued
• Willful violation - A violation that the employer
  intentionally and knowingly commits. The employer
  either knows that the operation constitutes a
  violation, or is aware that a hazardous condition
  exists and made no reasonable effort to eliminate
  it. The penalty range for this type of violation
  is 5000 to 70,000.
• Repeated violation - A violation of any standard,
  regulation, rule, or order where, upon
  re-inspection, another violation of the same
  previously cited section is found. Repeated
  violations can bring fines of up to 70,000.

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Questions