the dos & don’ts of an osha inspection

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1 The Dos & Don’ts of an OSHA Inspection ASSE Chapter Meeting Presented by: Tressi L. Cordaro | Washington D.C. February 5, 2014

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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 Presentation

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Page 1: The Dos & Don’ts of an OSHA Inspection

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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

Page 2: 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

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Page 3: The Dos & Don’ts of an OSHA Inspection

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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Page 4: The Dos & Don’ts of an OSHA Inspection

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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Page 5: The Dos & Don’ts of an OSHA Inspection

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

Page 6: The Dos & Don’ts of an OSHA Inspection

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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Page 7: The Dos & Don’ts of an OSHA Inspection

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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Page 8: The Dos & Don’ts of an OSHA Inspection

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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Page 9: The Dos & Don’ts of an OSHA Inspection

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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Page 10: The Dos & Don’ts of an OSHA Inspection

Three Phases of the Inspection

Opening Conference

Walk-Around

Closing Conference

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Page 11: The Dos & Don’ts of an OSHA Inspection

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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Page 12: The Dos & Don’ts of an OSHA Inspection

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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Page 13: The Dos & Don’ts of an OSHA Inspection

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

Page 14: The Dos & Don’ts of an OSHA Inspection

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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Page 15: The Dos & Don’ts of an OSHA Inspection

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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Page 16: The Dos & Don’ts of an OSHA Inspection

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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Page 17: The Dos & Don’ts of an OSHA Inspection

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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Page 18: The Dos & Don’ts of an OSHA Inspection

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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Page 19: The Dos & Don’ts of an OSHA Inspection

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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Page 20: The Dos & Don’ts of an OSHA Inspection

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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Page 21: The Dos & Don’ts of an OSHA Inspection

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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Page 22: The Dos & Don’ts of an OSHA Inspection

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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Page 23: The Dos & Don’ts of an OSHA Inspection

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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Page 24: The Dos & Don’ts of an OSHA Inspection

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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Page 25: The Dos & Don’ts of an OSHA Inspection

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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Page 26: The Dos & Don’ts of an OSHA Inspection

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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Page 27: The Dos & Don’ts of an OSHA Inspection

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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