What Do We Do When OSHA Comes Knocking?

Joseph McCoinMiller & Martin PLLC

Chattanooga, Nashville, and Atlanta Offices423-785-8338 | jmccoin@millermartin.com

Structure Of The Occupational Safety And

Health Act Of 1970• 29 U.S.C. §§ 651-78

• Occupational Safety & Health Administration (“OSHA”)

• Occupational Safety & Health Review Commission (“OSHRC”)

• National Institute of Occupational Safety & Health (“NIOSH”)

State OSHA Programs

• Complete federal preemption of state regulation

• Concept of State Plans - Federal OSHA (“Fed-OSHA”) must approve

the plan (i.e., state plans must be at least "as effective as" Fed-OSHA)

- However, state plans are not required to be identical to Federal OSHA (e.g., among other unique regulations, Cal/OSHA has an ergonomics regulation)

State OSH Plans Covering the Private & Public Sectors

Alaska Arizona California Hawaii

Indiana Iowa Kentucky Maryland

Michigan Minnesota Nevada New Mexico

N. Carolina Oregon Puerto Rico S. Carolina

Tennessee Utah Vermont Virginia

Washington Wyoming

NOTE: Connecticut, New Jersey, New York, and the Virgin Islands have plans that cover public sector employees only. Fed-OSHA covers private sector employees in these jurisdictions.

OSHA Inspections

Four types (by agency priority):(1) “Imminent danger”;(2) Fatality/catastrophe;(3) Complaint; and(4) Programmed Inspections

- Schedule of inspections based on neutral selection criteria (e.g., injury incidence rates)- May include “special emphasis” programs on a particular issue or sector

OSHA Inspections

OSHA typically responds to anonymous complaints by sending a letter to an employer asking the employer to respond, in writing, to the allegations.

Onsite Inspection Process

• OSHA personnel are almost always prohibited from giving advance notice of an inspection.

• By statute, OSHA is authorized to conduct investigations during “regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner” once a compliance officer presents his/her credentials.

Onsite Inspection Process

You generally have a right to insist upon a search warrant before submitting to an onsite inspection. (This isn’t the case when conditions are public and/or in emergency situations.) However, you need to determine whether it makes sense for your business to exercise this right.

Onsite Inspection Process

During the opening conference, you should confirm and/or receive:

• the compliance officer’s credentials;

• the nature, purpose, and scope of the inspection; and

• a copy of the complaint, if any, although a complainant’s name will typically not be disclosed.

Onsite Inspection Process

The opening conference is a good opportunity to raise concerns about “trade secrets.” An employer may identify areas in the facility that contain trade secrets. Typically, the compliance officer will not contest this designation and information from such areas will be treated as confidential by OSHA, preventing the information’s release to other parties via a Freedom of Information Act request or the like.

Onsite Inspection Process

Employees and representatives of employees (e.g., union business agents or union stewards) have the right to attend an opening conference. An employer can insist on separate opening conferences, but there’s no real advantage in doing so.

Onsite Inspection Process

• The opening conference is typically followed by a walkaround inspection based on the scope of the investigation. (The compliance officer may review records before actually touring the facility.) Don’t “walkaround” beyond the scope of the investigation.

• Note that an inspection with a limited initial scope (e.g., a “special emphasis” programmed inspection or inspection based on a specific employee complaint) may become broader in scope due to a compliance officer’s observations, employee complaints during the inspection, etc.

Onsite Inspection Process

• Both an employer representative and an employee representative can participate in the walkaround. Indeed, there may be different representatives for different phases of the inspection.

• Just because an employer can participate in the walkaround doesn’t mean that the compliance officer will stop his/her investigation if the employer chooses to do something else.

DON’T LEAVE THE COMPLIANCE OFFICER UNATTENDED

Onsite Inspection Process

• The compliance officer can take photos, videotape employees, use sampling kits, and use any other reasonable investigative technique.

• Try to duplicate what the compliance officer does (i.e., take the same pictures, notes, videos, etc.).

Onsite Inspection Process

• The compliance officer has the right to request one-on-one interviews with employees about safety conditions. Employees may refuse such a request if they are not under subpoena. Employees can also end an interview at any time or object to signing a statement or having the conversation recorded.

• Even under subpoena, OSHA’s interview privilege does not trump an employee’s right to an attorney, so employees may insist on having legal counsel present.

Closing Conference

• Identify problem areas

• Probable areas of citation

- Alleged violations

- Abatement

- Overview of Penalties

- Advise about rights to appeal

Issuance of Citations

• Describe alleged violation with sufficient notice to employers

• Propose the abatement period

- Recommend abatement method if a general duty clause violation

• Classify the alleged violation

• Propose monetary penalties

Classifications of Citations

Willful

• Conscious disregard of OSHA requirements

• Plain indifference to employee safety and health

• Penalties up to $70,000 per instance

• Egregious multiplier

Classifications of Citations

Repeat

• Substantially similar violation on record; or violation of same standard

• Three-year compliance record

• Penalties up to $70,000

Classifications of Citations

Serious

• Assumes, that, if accident occurs, there is substantial probability of death or serious physical injury

• Penalties up to $7,000

Classifications of Citations

Failure-to-Abate

• Cited violation never corrected

• Final order on record

• Penalties up to $7,000 per day

Classifications of Citations

Non-Serious/Other Than Serious

• Assumes that, if accident occurs, death or serious physical injury is unlikely

• Penalties up to $7,000

Classifications of Citations

De minimis

• Lack direct relationship to safety or health

• No impact on compliance history

• No penalties

Employer Responses to OS&H Citations

• Comply

• Request Informal Conference

• Notice of Contest

Proactive Steps

• Have a safety plan and a knowledgeable person responsible for that plan

• Have good record-keeping data

• Grab the low-hanging fruit

Top 10 Most Frequently Cited Standards in Fiscal Year 2008

• Scaffolding, general requirements, construction (29 CFR 1926.451) • Fall protection, construction (29 CFR 1926.501) • Hazard communication standard, general industry (29 CFR 1910.1200)• Control of hazardous energy (lockout/tagout), general industry (

29 CFR 1910.147)• Respiratory protection, general industry (29 CFR 1910.134)• Electrical, wiring methods, components and equipment, general

industry (29 CFR 1910.305)• Powered industrial trucks, general industry (29 CFR 1910.178) • Ladders, construction (29 CFR 1926.1053)• Machines, general requirements, general industry (29 CFR 1910.212)• Electrical systems design, general requirements, general industry (

29 CFR 1910.303)

Top 10 Standards For Which OSHA Assessed the Highest Penalties in Fiscal

Year 2008

• Fall protection, construction (29 CFR 1926.501) • Scaffolding, general requirements, construction (29 CFR 1926.451)• Electrical, hazardous (classified) locations (29 CFR 1910.307)• Control of hazardous energy (lockout/tagout), general industry (29

CFR 1910.147) • Excavations, requirements for protective systems, construction (29

CFR 1926.652)• Machines, general requirements, general industry (29 CFR 1910.212)• General duty clause (Section 5(a)(1) of the OSH Act) • Powered industrial trucks, general industry (29 CFR 1910.178) • Walking-working surfaces, general requirements (29 CFR 1910.22) • Process safety management of highly hazardous chemicals (29 CFR

1910.119)