the dos & don’ts of an osha inspection
DESCRIPTION
ASSE Chapter Meeting Presented by: Tressi L. Cordaro | Washington D.C. February 5, 2014. The Dos & Don’ts of an OSHA Inspection. Overview. Importance of Being Prepared Before OSHA Arrives During an OSHA Inspection After OSHA Leaves Informal Conference Contesting Citation. - PowerPoint PPT PresentationTRANSCRIPT
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The Dos & Don’ts of an OSHA Inspection
ASSE Chapter Meeting
Presented by:Tressi L. Cordaro | Washington D.C.
February 5, 2014
Overview
• Importance of Being Prepared
• Before OSHA Arrives
• During an OSHA Inspection
• After OSHA Leaves
• Informal Conference
• Contesting Citation
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Importance of Being Prepared
• Goals to effectively manage an OSHA investigation
• Minimize liability and disruption to production
• Present the facility in the best light possible
• Maintain positive employee relations
• Preserve the relationship with local OSHA office
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Importance of Being Prepared
Administrative Liability
o Citation penalties:
• Serious – Maximum $7,000
• Willful/Repeat – Maximum $70,000
• Failure to Abate – Maximum of $7,000 Each Day
• Egregious – Per Instance Violation
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Importance of Being Prepared
• What is at stake?
• Civil penalties
• Abatement costs
• Criminal conviction/penalties
• Misdemeanor with a maximum of 6 months imprisonment and maximum of $250,000 for individuals and $500,000 for the organization
• Civil liability
• Can be used as evidence of negligence
• Employee relations5
Importance of Being Prepared
• Negative Publicity
• OSHA Press releases
• “Regulation by shaming”
• Presumed guilty
• Creates impression of dangerous place to work
• Workers Compensation Costs
• In some states citations can increase the award by 100 percent.
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Importance of Being Prepared
Severe Violator Enforcement Programo Certain criteria must be met in order to be placed into the SVEP.
o OSHA can inspect all worksites simultaneously or over several months.
o You can litigate and have qualifying criterion withdrawn either at trial or through settlement negotiations.
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Before OSHA Arrives
• Assess Hazards, Prepare Plan, and Train
• Assess hazards (including review of past injuries and illnesses, and inspections) and make an inventory
• Make a plant-wide safety plan with input from top management, front-line management, and hourly employees
• Train everyone; then follow the plan
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Before OSHA Arrives
• Consider whether or when you will require a warrant before permitting entry
• How will you deal with employee representatives
• Determine who is to be notified when OSHA comes
• Determine who will be the contact person with OSHA on all aspects of the investigation
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Three Phases of the Inspection
Opening Conference
Walk-Around
Closing Conference
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When OSHA ArrivesOpening Conference
• Review credentials of compliance officer
• Learn the purpose of the investigation
• Request copy of complaint if one was made
• Contact appropriate company official and/or counsel
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When OSHA ArrivesOpening Conference
• Why is OSHA investigating?
• Imminent danger
• Catastrophic and fatal accidents
• Eight-hour reporting requirement (fatality or hospitalization of three or more employees)
• Employee or other complaint
• Programmed (SST, NEP, etc.)
• Re-inspection
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Opening Conference
You Should Set Reasonable Ground Rules:o Logistics plan for site inspection
o Escort
o Employee interviews
o Document production
o Photographs/Videotaping
o Sampling
o Walk-around
o OSHA briefings13
Logistics Plan
You Should:o Designate OSHA entry for inspection
o Designate OSHA location for inspection
o Designate location for employee interviews
o Require OSHA to stay in the designated areas until request for walk-around
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Escort
You Should: o Escort OSHA at all times
• This prevents the compliance officer from getting hurt.
• This allows you to gather information about the direction/focus of the inspection.
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Walk-Around
8(e) of the OSH Act Authorizes the Employer and the Exclusive Bargaining Representative to Accompany OSHA During the Walk-Around.
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Walk-Around
You Should:o Require OSHA to provide reasonable notice for the
walk-around
o Determine route to area needed to be inspected
o Audit route before OSHA inspects
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Walk-Around
You Should:o Require OSHA to stay in designated route
o Take notes during walk-around
o Debrief walk-around representative
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During an Inspection: Management Interviews
• Statements by managers/supervisors are binding on the company
• Entitled to management representative or attorney
• Typical ground rules
• No tape or video recording
• No signing of statements
• Prepare managers who will be questioned
• Lying to an inspector is a criminal offense and OSHA will prosecute
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During an Inspection: Employee Interviews
• OSHA has the right to “question privately” any employee
• No rule against the employer interviewing hourly employee witnesses, even on work time
• Interviews are voluntary, unless OSHA issues subpoena
• Inform employees that OSHA has no right to tape-record or video-tape their interview
• Inform employees that OSHA has no right to get a signed statement
• Inform employees that they can inform OSHA that they waive confidentiality regarding their statements
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Employee Interviews
• But don’t encourage workers to not cooperate with OSHA
• Tell employees nothing they tell OSHA will result in any adverse job changes
• Tell the employees to (1) tell the truth, (2) provide facts based on first-hand knowledge, (3) do not guess or speculate, (4) listen carefully to the question, and (5) answer only questions asked
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During an Inspection: Document Requests
• Document requests submitted to a single source, in writing
• Is the document responsive to OSHA’s written request?
• Is the document privileged?
• Mark documents as Trade Secret/Business Confidential
• Is the request reasonable?
• Maintain separate copy of all documents provided
• If written, no question what was sought by OSHA
• Do not allow compliance officer to rifle through documents
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Document Production
You Should:o Review Documents Before Producing
• This ensures responses are not over or under-inclusive.
• Preserves confidentiality of Trade Secrets.
o Stamp Documents Being Produced As Trade Secret to Preserve Confidentiality
• OSHA is required to maintain confidentiality of Trade Secrets under Section 15 of the OSH Act.
o Bates stamp documents being produced
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Photographs, Videotaping and Sampling
You Should:o Take shadow photographs and videotape
o Require 24 hours notice prior to any industrial hygiene sampling
• This allows time to arrange parallel sampling
• This ensures proper methodology for sampling
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During an Inspection: Closing Conference
• Goal – Learn as much as you can
• What citations will OSHA issue?
• How will they be characterized?
• What abatement does OSHA expect?
• How is the abatement to be accomplished?
• Do not argue and avoid admissions
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After an Inspection
• Employer has15 working days from receipt of citations to file notice of contest
• The 15-working-day period cannot be extended
• Failure to file a timely notice of contest effectively ends your ability to challenge any aspect of the citations or proposed penalties
• Right to Informal Conference with Area Director during the 15-day period
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After NOC
• Case is sent to the Review Commission
• Assigned to an ALJ (Administrative Law Judge)
• Can still attempt to settle
• Hearing on the merits and a decision issued by the ALJ
• Appeal rights to a three panel Review Commission (all political appointees)
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