A Manager's Guide to
OSHA
What Every Manager Should Know
Revised Edition
Neville C. Tompkins
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A Manager's Guide to OSHA
What Every Manager Should Know
Revised Edition
Neville C. Tompkins
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Learning Objectives for
A MANAGER'S GUIDE TO OSHA
The learning objectives for A Manager's Guide to OSHA are listed below. They
have been developed to guide the user to the core issues covered in this book.
The objectives of this book are to help the user:
1) Understand the provisions of the federal Occupational Safety and
Health Act
2) Become familiar with procedures for an OSHA inspection
3) Learn about safety and health citations, penalties, and the appeal process
4) Obtain information on assistance available from OSHA
Assessing Progress
Course Technology has developed a Crisp Series assessment that covers the
fundamental information presented in this book. A 25-item, multiple-choice and
true/false questionnaire allows the reader to evaluate his or her comprehension
of the subject matter.
To download the assessment and answer key, go to www.courseilt.com and
search on the book title or call 1-800-442-7477.
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ii
Preface
Every week in America many employers receive that ominous call from the
receptionist, “There’s a representative from OSHA in the lobby who wants to see
you.” This book tells you what to do next.
This book shares my experiences in dealing with federal OSHA for many years as a
safety and health manager at the plant level in general industry and then at the
corporate level in negotiating with OSHA-area officials in dozens of settlement
conferences.
Neville C. Tompkins
About the Author
Neville C. Tompkins, a safety and health consultant and writer from Cedar Run,
New Jersey, has had plant, division, and corporate safety and health responsibilities
in large organizations. As director of safety and health for Continental Can Co., Inc.,
he had corporate staff responsibility for safety and health in that 9,500-employee
company and was the lead corporate manager in dealing with federal and state
safety and health agencies.
A Manager's Guide to OSHA
Tompkins is the author of How to Conduct Safety and Health Audits (Business and
Legal Reports Inc., East Lyme, CT), How to Write a Company Safety Manual
(Standard Publishing, Boston) and Basics of Safety and Health (National Safety
Council, Chicago).
iii
Table of Contents
Part 1: The Federal Occupational Safety and Health Act
1
Introducing OSHA ...................................................................................................... 3
OSHA’s Role in Safety and Health ............................................................................. 4
The OSH Act’s Broad Coverage................................................................................. 5
State Job Safety and Health Programs ........................................................................ 6
OSHA Standards and Regulations .............................................................................. 7
How OSHA Standards Are Set ................................................................................... 9
Key OSHA Standards ............................................................................................... 11
Variances from the Standards.................................................................................... 14
Responsibilities and Rights Under OSHA................................................................ 15
Employee Rights....................................................................................................... 17
Employee Responsibilities........................................................................................ 20
Monitoring Injury and Illness ................................................................................... 22
Safety and Health Training ....................................................................................... 25
Part 2: Anticipating OSHA Inspections
27
What to Expect from OSHA..................................................................................... 29
Unannounced Investigations..................................................................................... 30
OSHA’s Inspection Priorities .................................................................................... 31
Being Prepared for an OSHA Visit ........................................................................... 36
Prelude to an Inspection............................................................................................ 39
OSHA’s Opening Conference ................................................................................... 40
Management Actions at the Opening Conference .................................................... 42
The Inspection Tour .................................................................................................. 44
Management Actions During the Inspection ............................................................ 45
The Closing Conference ........................................................................................... 46
A Manager's Guide to OSHA
iv
Part 3: OSHA Violations and Consequences
51
Citations and Penalties.............................................................................................. 53
Categories of OSHA Violations ................................................................................ 55
Adjustments to Penalty Amounts.............................................................................. 58
Appealing Citations .................................................................................................. 59
Planning for the Appeal Process ............................................................................... 60
Preparing for the Informal Conference ..................................................................... 61
How the Informal Conference Can Help You........................................................... 64
Protocol at the Informal Conference......................................................................... 65
Contesting an OSHA Citation................................................................................... 66
The OSHA Review Commission .............................................................................. 68
Part 4: Getting Help from OSHA
71
OSHA Consultation Services.................................................................................... 73
Voluntary Protection Programs ................................................................................. 75
Other OSHA Services ............................................................................................... 76
Conclusion ................................................................................................................ 77
Appendix
79
A Manager's Guide to OSHA
OSHA Resources and Forms .................................................................................... 81
Appendix to Part 2 .................................................................................................... 98
Appendix to Part 3 .................................................................................................... 99
P
A
R
T
1
The Federal
Occupational
Safety and
Health Act
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2
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3
Introducing OSHA
There is one law in the United States that affects nearly every individual who works
for an employer—the Occupational Safety and Health Act (OSHA) of 1970. This
law established for the first time a national policy for safety and health. Until that
time no uniform, comprehensive provisions existed on a national basis to protect
employees from workplace safety and health hazards.
In developing provisions of the OSH Act in 1970, Congress was
presented with these statistics from that era:
h Job-related accidents accounted for more than 14,000 worker
deaths each year
h Nearly 2.5 million workers became disabled each year through
workplace injuries
h New cases of occupational diseases each year were estimated at
300,000
With this information in mind, a bipartisan Congress passed the Occupational
Safety and Health Act of 1970 “… to assure so far as possible every working man
and woman in the nation safe and healthful working conditions …”
In the intervening years, this act has had a profound and positive impact on safety
activities in this country. Accidents and injuries have declined. Emerging problems
in occupational health have received attention. And those companies that actively
embraced the concept of a safe workplace have gained greater control over workers’
compensation costs.
The act spurred the growth of the safety engineering profession and markedly
increased the need for industrial hygienists, occupational health nurses, and
physicians specially trained in occupational health. The act also gave a boost to the
growing personal protective-equipment industry.
1: The Federal Occupational Safety and Health Act
OSHA has helped cut workplace fatalities by nearly 60% and occupational injury
and illness rates by nearly 40%. In the same time frame, employment in the United
States has doubled to more than 115 million workers at 7.2 million work sites. And
OSHA has expanded from its original and most important role of enforcement into
strategic partnerships with employer organizations and labor unions and other
alliances to improve worker safety and health.
4
OSHA’s Role in Safety and Health
With the establishment of the OSH Act, an Occupational Safety and Health
Administration was created within the federal Department of Labor to administer
the act and to:
h Develop mandatory job safety and health standards and enforce them
h Maintain a reporting and record keeping system to monitor job-related
injuries and illnesses
h Encourage employers and employees to reduce workplace hazards and
implement or improve safety and health programs
h Provide for research in occupational safety and health
h Establish training programs to increase the number and competence of
occupational safety and health personnel
h Establish separate but dependent responsibilities and rights for employers
and employees to achieve better safety and health conditions
h Provide for state-level occupational safety and health programs in those
states wanting to establish their own programs
A Manager's Guide to OSHA
List key elements of your company’s health and safety programs:
h
____________________________________________________________
h
____________________________________________________________
h
____________________________________________________________
h
____________________________________________________________
h
____________________________________________________________
h
____________________________________________________________
h
____________________________________________________________
h
____________________________________________________________
5
The OSH Act’s Broad Coverage
The OSH Act applies to all employers and their employees in the 50 states, the
District of Columbia, Puerto Rico, and territories of the United States under federal
government jurisdiction. Coverage is provided either through federal OSHA or
through an OSHA-approved state program. Employees of the federal government
receive safety and health protection through a federal safety program.
OSHA’s broad coverage applies to any “person engaged in a business affecting
commerce that has employees, but does not include any State or political
subdivision of a State.” Thus, the act applies to hundreds of thousands of employers
and millions of their employees in such fields as manufacturing, construction,
longshoring, agriculture, law and medicine, charity and disaster relief, organized
labor, and private education. The coverage applies to religious organizations to the
extent that they employ workers for secular purposes.
Injuries or job illnesses to temporary employees must be recorded if the employer
supervises these workers on a day-to-day basis.
Exclusions Under the OSH Act
The OSH Act excludes from coverage self-employed individuals. Also excluded are
farms at which only immediate members of the farm employer’s family are
employed. Safety and health activities in mining and railroad operations and in the
U.S. Postal Service are covered by separate government agencies.
Safety standards issued under the following laws were superseded with the advent
of OSHA: The Walsh-Healey Act, the Service Contract Act, the Construction Safety
Act, and the Arts and Humanities Act.
1: The Federal Occupational Safety and Health Act
Federal OSHA provisions do not apply to state and local governments in their role
as employers, and this is covered in more detail in the next section.
6
State Job Safety and Health Programs
The federal OSH Act encourages states to develop and operate, under federal OSHA
guidance, state-level job safety and health programs. A key provision, however, is
that the states must adopt standards and enforce requirements that are at least as
effective as the federal requirements. As a practical matter many states adopt
standards identical to the federal regulations.
At this writing the following states and territories have their own state-level safety
and health programs:
Alaska, Arizona, California, Connecticut (for public employees only),
Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota,
Nevada, New Jersey (public employees only), New Mexico, New York
(public employees only), North Carolina, Oregon, Puerto Rico, South
Carolina, Tennessee, Utah, Vermont, U.S. Virgin Islands (public
employees only), Virginia, Washington, Wyoming.
Once a state plan is approved by federal OSHA, the federal government provides
funds for up to 50% of the state plan’s operating costs.
A Manager's Guide to OSHA
The state plans must, to the degree allowed by state law, provide coverage for state
and local employees. Where states have developed plans limited to coverage for
state and local government employees, private-sector employees remain under
federal jurisdiction.
7
OSHA Standards and Regulations
OSHA has the responsibility to develop and enforce safety and occupational health
standards, which may require employers to adopt or use practices or processes
considered reasonably necessary to protect workers on the job. In many cases these
are minimum standards for safe operation.
Under the act, it is an employer’s responsibility to become familiar with standards
applicable to his business and to ensure that employees have and use personal
protective equipment required for safe operation.
The General Duty Clause
It would be practically impossible to identify and write a set of standards for every
job or industry. Thus, where no specific standards have been developed under the
act, the federal General Duty Clause comes into play. This clause requires that
employers comply with OSHA standards and provide a work environment “free
from recognized hazards that are causing or likely to cause death or serious physical
harm” to employees. Then as potential or actual health or safety problems become
known and identified, OSHA has the authority to specify and issue guidelines or to
propose new standards.
GENERAL DUTY CLAUSE
Sec. 5. (a) Each employer—
(2) shall comply with occupational safety and health
standards promulgated under this act.
(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.
A prime example of the use of OSHA’s broad powers in the 1990s was the red-meat
packing industry. Without an ergonomic standard, the agency used its powers under
the General Duty Clause to develop “Ergonomic Guidelines for the Meat Packing
Industry,” which were issued to all companies in that business. OSHA’s compliance
officers enforced those guidelines as if they were a standard.
1: The Federal Occupational Safety and Health Act
(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;
8
OSHA has codified its standards and administrative directives as follows:
h General Industry and Agriculture Standards and Interpretations
h Maritime Standards
h Construction Standards
h Other Regulations and Procedures
h Field Operations Manual
h OSHA Technical Manual
Copies of these standards are available from the Superintendent of Documents,
Government Printing Office, Washington, DC 20402, telephone (202) 512-1801, or
from the OSHA Web site at www.osha.gov. Additional information on OSHA
resources and offices also are listed on the Web site.
Because states adopt and enforce their own standards under state law, copies of the
state standards may be obtained from the individual state agency.
OSHA and Your Business
1. List two OSHA standards or regulations that you believe apply to your
business.
____________________________________________________________
____________________________________________________________
2. What OSHA standards and regulations do you find confusing or difficult to
comply with? Why?
____________________________________________________________
____________________________________________________________
A Manager's Guide to OSHA
3. Do you believe that your work site is currently ready for an unannounced
OSHA inspection? _____________
9
How OSHA Standards Are Set
OSHA does not develop new standards or revise existing standards in a vacuum.
The agency can begin standards-setting procedures on its own initiative or in
response to requests from any of the following:
h Congress
h The National Institute of Occupational Safety and Health (NIOSH)
h Requests from state and local governments
h Any nationally recognized standards-developing organization such as
American National Standards Institute and National Fire Protection
Association
h Employer or labor organizations
h Any other interested person
NIOSH—the research arm of OSHA—conducts research on safety and health
problems, provides technical assistance to OSHA, and recommends standards for
OSHA adoption. NIOSH also may investigate workplaces, gather testimony from
employers and employees, and require that management report employee exposure
to potentially hazardous materials. NIOSH may require employers to provide
medical examinations and tests to determine the incidence of occupational illness
among employees.
Several advisory committees assist OSHA in standards development. Two key
standing committees are the National Advisory Committee on Occupational Safety
and Health, which advises on administration of the act, and the Advisory Committee
on Construction Safety and Health. A number of ad hoc committees have been used
to overview specific industry standards.
1: The Federal Occupational Safety and Health Act
10
Public Notice of Standards Under Development
Once OSHA has developed plans to propose, amend, or revoke a standard, it
publishes its intentions in the Federal Register. When it is seeking information that
can be used in drafting a proposal, it publishes a “Notice of Proposed Rulemaking”
or “Advanced Notice of Proposed Rulemaking.” These notices include terms of the
new rule and provide a specific time for the public to respond, at least 30 days.
Interested parties that submit arguments and evidence also may request a public
hearing. OSHA announces such hearings in advance in the Federal Register.
The federal Department of Labor publishes a semiannual agenda of standards under
development, including the target dates for completion.
Emergency Temporary Standards
OSHA also has the authority to publish an Emergency Temporary Standard. This
may happen when OSHA determines that workers are in grave danger from
exposure to toxic substances, to agents determined to be physically harmful, or to
new hazards for which an emergency standard is needed to protect workers.
A Manager's Guide to OSHA
Temporary standards may stay in effect for up to six months while the regular
OSHA rulemaking procedure continues. The validity of a temporary emergency
standard may be challenged in the appropriate U.S. Court of Appeals.
11
Key OSHA Standards
This section lists the best-known OSHA standards applicable to general industry.
References cited are to Section 1910 CFR (Code of Federal Regulations) and the
specific subsection dealing with the topic.
¾ Means of Egress (Exiting from a Facility) 1910.35
Provisions for continuous and unobstructed means of exit from any point in
a building or structure.
¾ Emergency Action and Fire Prevention Plans 1910.34
An “umbrella” standard that applies to most emergency action plans
required by a particular OSHA standard. Outlines elements required, alarm
systems, evacuation procedures.
¾ Ventilation 1910.94
Provisions for safe ventilation of materials including abrasives, grinding
wheels, and so forth.
¾ Occupational Noise Exposure 1910.95
Provisions for effective engineering or administrative controls to reduce
noise levels in the workplace when they equal or exceed 85 decibels on an
eight-hour time-weighted average. Requires monitoring, observing the
monitoring, doing baseline and annual audiograms, and notifying
employees of results.
¾ Process Safety Management of Highly Hazardous Chemicals 1910.119
Requirements for preventing or minimizing the consequences of the release
of highly hazardous chemicals.
¾ Hazardous Waste Operations and Emergency Response 1910.120
Provisions for employers and employees engaged in hazardous substance
response operations, clean-up operations, and hazardous waste storage.
¾ Personal Protective Equipment 1910.132 through .140
Provisions for eye and face protection, respirators, head and foot protection,
and the like.
1: The Federal Occupational Safety and Health Act
¾ Hazardous Materials 1910.101 and continuing
A lengthy series of standards dealing with the handling of certain hazardous
materials, related piping systems, and outside container storage.
12
¾ Confined Spaces Entry 1910.146
Procedures for safe entry to, work in, and exit from confined work spaces.
¾ Control of Hazardous Energy (“Lock-out Tag-out”) 1910.147
Strict regulations for affixing lock-out or tag-out devices to energy-isolating
devices to prevent unexpected equipment start-up. Requires inspections and
employee training.
¾ Medical and First Aid 1910.151
Basic provisions for work-site first aid and medical coverage.
¾ Fire Protection 1910.155 through .164
Provisions for employer-established fire brigades and fire extinguishing
systems.
¾ Machinery and Machine Guarding 1910.211 through .221
General requirements for all machinery, including abrasive wheels, mills,
and calendars; and a section on mechanical power presses, forging
machines, and mechanical power transmission apparatus.
¾ Hand and Portable Powered Tools 1910.241 through .247
Definitions of hand tools covered by the standard and basic guarding
mechanisms that have proved effective in protecting employees using this
equipment.
¾ Welding, Cutting and Brazing 1910.251 through .254
Precautions required while welding, including fire precautions.
A Manager's Guide to OSHA
¾ Special Industries 1910.261 through .275
Precautions important to specific industries including textiles, bakery
equipment, laundry machinery, sawmills, pulpwood logging, and
telecommunications.
¾ Electrical 1910.301 through .309
Detailed design safety standards for electrical systems, and work practices
with electricity, maintenance, and related requirements.
¾ Air Contaminants 1910.1000
Employee exposure limits to workplace air contaminants and the formulae
that OSHA’s industrial hygienists will use to measure these contaminants.
13
¾ Asbestos, etc. 1910.1001
Permissible exposure limits, respirator protection, warning signs, and
protective clothing for employees working with asbestos and kindred
products. Excludes construction workers who are covered in 1910.12b of
the OSHA Construction Standard.
¾ Vinyl Chloride 1910.1017
Provisions for manufacture, reaction, packaging, repackaging, storage,
handling, use, and transportation of vinyl chloride or polyvinyl chloride and
employee exposure to these chemicals.
¾ Lead 1910.1025
Permissible exposure limits for lead, provisions for medical examinations,
and abatement procedures.
¾ Benzene 1910.1028
Occupational exposures to benzene, excluding motor fuels, gasoline, or
other fuels subsequent to its discharge from bulk wholesale storage
facilities.
¾ Blood-Borne Pathogens 1910.1030
Obligations of employers in health care facilities, in medical and dental
offices, and those assigned to render first aid in industry and in
construction—to protect employees involved in treatment from the risk of
infection from those they’re treating.
¾ Hazard Communication 1910.1200
The best known of OSHA’s recent standards (also called the “employee
right-to-know” law), this standard requires evaluation of chemical hazards
in the workplace and the communication of those hazards to employees
through labels, material safety data sheets (MSDS), training, and a written
local hazard communication program.
OSHA’s enforcement staff currently consists of more than 1,100 federal compliance
officers and industrial hygienists. They operate out of 90 federal OSHA area offices
across the United States. The federal agency’s budget approaches $468 million
annually.
1: The Federal Occupational Safety and Health Act
¾ Formaldehyde 1910.1048
Occupational exposures to formaldehyde and materials that release
formaldehyde.
14
Variances from the Standards
Generally, a variance is an exception to compliance with some part of a safety and
health standard. OSHA grants variances to employers in the three categories
outlined in this section—temporary, permanent, and experimental.
Temporary Variance
Employers may ask OSHA for a temporary variance from a standard or regulation
if:
h They cannot fully comply by the effective date because of shortages of
materials, equipment, or professional or technical personnel
h They can prove their facilities or methods of operation provide employees
with protection “at least as effective” as that required by OSHA.
A temporary variance may be granted for the period of time needed to achieve
compliance, or for one year, whichever is shorter. It is renewable twice, OSHA says,
each time for six months.
Permanent Variance
An alternative to a particular standard or requirement, a permanent variance can be
granted to employers who are able to show that their conditions, practices, or
operations are as safe as compliance with the standard. OSHA arranges a variance
inspection and hearing, and if it finds the request valid, approves a permanent
variance. This details the employer’s specific exceptions and responsibilities under
the ruling. Employers who believe their own practices provide as effective
protection as the OSHA standard should seek a permanent variance.
Experimental Variance
A Manager's Guide to OSHA
An employer may also apply for an experimental variance to demonstrate or
validate new job safety and health techniques. If that experiment has been approved
by OSHA or the head of NIOSH, a variance may be granted to permit the
experiment.
15
Responsibilities and Rights Under OSHA
As the OSH Act was fashioned and as the Occupational Safety and Health
Administration developed its administrative procedures, a set of employer and
employee responsibilities evolved. Listing these responsibilities has greatly
influenced how the act has been enforced, how management perceives OSHA
standards, what workers can expect in protection under the act, and how workers are
expected to work safely on the job.
Employer Responsibilities
How many of the following responsibilities has your company fulfilled? Place a
check (√) in the box if or when you have met each one.
‰ Provide a safe and healthful workplace that is free from recognized hazards.
‰ Examine workplace conditions to ensure they conform to applicable OSHA
standards, rules, and regulations.
‰ Be familiar with mandatory OSHA standards that affect your industry. Make
copies available to employees upon request.
‰ Inform all employees about OSHA through the notice board—workplace
poster 3165 or state equivalent, which is also available in Spanish. (A
sample poster is included in the Appendix and can be viewed on the OSHA
Web site at www.osha.gov/Publications/osha3165.pdf.)
‰ Minimize or reduce hazards.
‰ Use color codes, posters, labels or signs where needed to warn employees of
potential hazards.
‰ Establish or update safety and health operating procedures so that
employees follow these requirements.
‰ Provide medical examinations for employees when OSHA standards require
such examinations.
‰ Provide training required by specific OSHA standards such as the Hazard
Communication Standard, the Hearing Conservation Standard, and the Lead
Standard.
‰ Report to the nearest OSHA office within eight hours any fatal accident or
an accident that results in the hospitalization of three or more employees.
1: The Federal Occupational Safety and Health Act
‰ Ensure employees have and use safe tools and equipment and personal
protective equipment and that such equipment is properly maintained.
16
‰ Keep OSHA-required records of work-related injuries and illnesses and post
a copy of the totals from February 1 through April 30 each year. (This
provision applies to employers with 11 or more employees in “covered”
industries and businesses.)
‰ Provide employees, former employees, and their representatives with access
to the OSHA 300 Log (see Appendix under OSHA Record Keeping and
Reporting) at a reasonable time and in a reasonable manner.
‰ Provide access to employee medical records and exposure records to
employees and their authorized representatives.
‰ Allow employees their protection and rights under the act and not
discriminate against employees who properly exercise those rights.
‰ Post any OSHA citations near the work site involved. Any citations must
remain posted until the violation has been abated, or for three working days,
whichever is longer.
‰ Abate cited violations within the prescribed period, or any extended period
agreed to by OSHA, and submit documentation on the abatement to OSHA,
if requested.
Employer Rights
Besides responsibilities, employers also have certain rights under the OSH Act,
which include the right to:
h Seek advice and consultation from the nearest OSHA office. (OSHA will
not inspect merely because an employer requests information or assistance.)
h Receive proper identification of the OSHA compliance officer before an
inspection to ascertain the reason for the inspection.
h Have an opening and closing conference with the compliance officer.
h Accompany the compliance officer on the inspection tour.
A Manager's Guide to OSHA
h File a Notice of Contest with the OSHA area director within 15 working
days of receipt of any citations.
h Be assured of the confidentiality of any trade secrets observed by the OSHA
compliance officer during an inspection.
h Apply to OSHA for a temporary variance from a standard if unable to
comply because of the unavailability of materials, equipment, or personnel
needed to make necessary changes within the required time.
h Apply to OSHA for a permanent variance from a standard if the employer
can furnish proof that its facilities or operation methods provides employees
protection at least as effective as that required by the standard.
17
Employee Rights
Because the OSH Act was developed to protect the health and safety of workers, the
designers of the act provided for significant employee protection and rights under
the act. The designers included certain employee responsibilities as well.
Management representatives must be fully aware of these rights and responsibilities
as they shape their safety and health programs and train supervisors for OSHA
compliance.
Foremost among employee rights is the right to seek safety and health on the job
without fear of reprisal or punishment (Section 11 of the act). The law says
employers shall not punish or discriminate against workers for exercising rights
such as:
h Complaining to an employer, union, OSHA, or any other government
agency about job safety and health conditions
h Filing safety or health complaints or grievances
h Participating in a workplace safety or health committee or in union activities
for job safety and health
Protection from Discrimination
If an employee is exercising these or other OSHA rights, the employer is not
allowed to discriminate against the worker in any way, such as through firing,
demotion, taking away benefits, transferring the worker to an undesirable job or
shift, threatening, or harassing the worker.
OSHA investigates these cases and if an employee has been illegally punished for
exercising safety and health rights, OSHA asks the employer to restore that
worker’s job earnings and benefits. If necessary, and if it can prove discrimination,
OSHA can take the employer to court.
1: The Federal Occupational Safety and Health Act
Workers who believe they have been punished for exercising workplace safety and
health rights may contact the nearest OSHA office within 30 days of learning of the
alleged discrimination. A union representative may file the 11(c) complaint on
behalf of a worker.
18
Additional Employee Rights
Under OSHA, an employee also has the right to:
h Receive adequate information and training on workplace safety and health
hazards.
h Review copies of appropriate OSHA standards, rules, regulations, and
requirements that the employer should have available at the workplace.
h Request information from the employer on safety and health hazards in the
work area, on precautions that may be taken, and on procedures to be
followed if one is involved in an accident or is exposed to toxic substances.
h Be informed of how to report an injury or illness.
h Request OSHA to investigate if one believes hazardous conditions or
standards violations exist in the workplace.
h Have one’s name withheld from the employer, if the employee so
requests to OSHA and if the employee files a written and signed
complaint.
h Be kept advised of OSHA actions about the complaint and have an
informal review, if requested, of any decision not to inspect or issue
a citation.
h Have one’s authorized representative accompany the OSHA
compliance officer during an inspection tour.
h Observe any monitoring or measuring of hazardous materials and to
see these records, and one’s own medical records, as specified in the
Act. Employers must provide these employee medical records to the
employee or his designated representative within 15 working days of
the request.
h Review the OSHA 300 Log at a reasonable time and in a reasonable
manner.
A Manager's Guide to OSHA
h Request a closing discussion with the compliance officer following
an inspection.
h Object to the abatement period set in the citation issued to the employer by
writing to the OSHA area director within 15 workdays of the issuance of the
citation.
19
h Be notified by the employer if the employer applies for a variance from an
OSHA standard, testifies at a variance hearing, and appeals the final
decision.
h Submit a written request to the National Institute for Occupational Safety
and Health (NIOSH) for information on whether any substance in the
workplace has potentially toxic effects in the concentrations being used and
have the employee’s name withheld from the employer, if requested.
The Job Safety and Health Protection poster included in the Appendix outlines basic
employee rights under the OSH Act.
1: The Federal Occupational Safety and Health Act
20
Employee Responsibilities
Yes, employees do have responsibilities under the OSH Act, and forward-thinking
employers include these responsibilities in their safety-orientation and safetytraining programs. Although OSHA does not cite workers for violations of these
responsibilities, employees are directed under the General Duty clause (Section 5b
of the act) to “comply with all occupational safety and health standards and all
rules, regulations, and orders issued under the act” that are applicable.
The OSH Act wisely assigns these responsibilities to employees:
h Comply with applicable OSHA standards
h Follow all lawful employer safety and health rules and regulations, and
wear or use prescribed protective equipment while working
h Report hazardous conditions to the supervisor
h Report any job-related injury or illness to the employer, and seek treatment
promptly
h Cooperate with the OSHA compliance officer conducting an inspection if
the officer inquires about safety and health conditions in the workplace
h Exercise employee rights under the act in a responsible manner
h Read the OSHA poster at the job site
A Manager's Guide to OSHA
Employees who break OSHA regulations or plant safety rules may be subject to
disciplinary action by the employer.
21
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REVIEWING EMPLOYER AND EMPLOYEE
RIGHTS AND RESPONSIBILITIES
1. List three responsibilities of an employer under OSHA.
1.___________________________________________________________
2.___________________________________________________________
3.___________________________________________________________
2. List three rights of an employer under OSHA.
1.___________________________________________________________
2.___________________________________________________________
3.___________________________________________________________
3. List two rights guaranteed to employees by OSHA.
1.___________________________________________________________
2.___________________________________________________________
4. What do you think is the most important employee responsibility under
OSHA? Why? What have you done to communicate employee
responsibilities to your staff?
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
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1: The Federal Occupational Safety and Health Act
____________________________________________________________
22
Monitoring Injury and Illness
Before the OSH Act became effective in 1970, there was no centralized or
systematic method for monitoring occupational injury and health problems. Prior to
1970, statistics on job injuries and illnesses were collected by some states and by
some private and trade organizations.
With OSHA came the first basis for consistent, nationwide procedures to collect
injury and occupational illness data. These were vital requirements if the agency
was to fulfill its mandate of determining safety and health problems and helping to
solve those problems.
OSHA Record Keeping and Reporting
Employers must maintain records of occupational injuries and illnesses (either by
hand posting or on a computer) as they occur, or no later than six workdays after
receiving the information. The records should not be sent to OSHA but must be kept
for five years at the establishment and available for OSHA inspection if requested.
The exception is any accident that results in one or more fatalities or the
hospitalization of three or more employees. Such accidents must be reported to
OSHA within eight hours.
The two forms needed for employer record keeping, along with complete details for
recording work-related injuries and illnesses, are provided in the Appendix and on
the OSHA Web site at www.osha.gov/recordkeeping/pub3169text.html. These
records must be completed in most American workplaces of 11 or more employees.
They are:
¾ OSHA 300 Log and Summary of Occupational Injuries and Illnesses
Each recordable occupational injury and illness must be logged on this form
within six working days of when the employer learns of it.
A Manager's Guide to OSHA
¾ OSHA 301 Injury and Illness Incident Report
This form contains much more detail. An insurance company’s or workers’
compensation carrier’s form of First Report of Injury or Illness is more
often used and is an acceptable substitute for the 301 form.
Record keeping forms are maintained on a calendar-year basis. A copy of the totals
and information following the fold line of the last page of the OSHA 300 form must
be posted from February 1 through April 30 each year at each establishment
wherever notices to employees are customarily posted. If no injuries or illnesses
occurred during the year, then you enter “zero” on the totals line and post the form.
A company executive is required to certify and sign the summary.
Employers required to keep work illness or injury records must do so for each
establishment. OSHA defines establishment as “a single physical location where
business is conducted or where services are performed.” An employer whose
employees work at dispersed locations must keep records at the place(s) where the
employees report for work.
23
Exempt Employers
Most employers with 10 or fewer employees are exempted from keeping such
records unless they are selected by the Bureau of Labor Statistics to participate in an
annual survey of occupational injuries and illnesses.
OSHA record keeping also is not required for most employers in retail trade,
finance, insurance, real estate and service industries such as bars and restaurants,
although these employers are covered by the OSH Act. To clarify, record keeping is
not required for Standard Industrial Classification (SIC) 52-89, except for the
following SIC codes, for which record keeping is required: SIC 52 building
materials and garden supplies, SIC 53 and 54 general merchandise and food stores,
SIC 70 hotels and other lodging places, SIC 75 and 76 repair services, SIC 79
amusement and recreation services, and SIC 80 health services.
The purpose of keeping records is to help define high-hazard industries and to
inform employees of the status of their employer’s records. But although record
keeping applies only to most employers of 11 or more individuals, remember that all
employers must comply with OSHA standards and display the OSHA poster.
Defining Job Injury or Illness
To complete the OSHA forms correctly, managers must understand key definitions
in the record-keeping regulations. OSHA’s definitions may vary from the
employer’s own record keeping practices or industry practices.
Recordable occupational injuries and illnesses are those that result in:
h Death (must be recorded regardless of the length of time between the injury
and death)
h Restriction of work or motion
h Loss of consciousness
h Transfer to another job
h Medical treatment beyond first aid
h Diagnosis of a significant injury or illness by a physician or other licensed
health care professional
Employers are required to record “light duty” or restricted work cases when the
injured or ill employee works only partial days or is restricted from performing
routine job functions. But if the restricted work activity is limited to the day of
injury only, the case need not be recorded.
1: The Federal Occupational Safety and Health Act
h One or more days away from work
24
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OSHA-RECORDABLE INJURIES
What OSHA defines as “recordable” injuries may be different from workers’
compensation definitions or from the employer’s own definitions of an injury or
job illness. Remember that OSHA’s definitions may not include every posting
on the facility’s first aid log.
With the OSHA definitions in mind, you should review the first aid log to see
what injuries and work illnesses qualify as “OSHA-recordable” injuries. If an
employer or an employer’s representative does not want the employee’s name
listed on the log, then the term privacy case is to be used instead and a separate
log kept of such cases.
1. List two recent “OSHA-recordable” injuries that have occurred at your
business.
1. __________________________________________________________
__________________________________________________________
2. __________________________________________________________
__________________________________________________________
2. Can you list two potential hazards at your work site that might cause an
injury or job illness?
1. __________________________________________________________
__________________________________________________________
2. __________________________________________________________
__________________________________________________________
A Manager's Guide to OSHA
3. If yes, what steps has management taken to correct the hazard and ensure
workers’ safety?
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
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Safety and Health Training
OSHA believes that training is an essential part of every employer’s safety and
health program. Many OSHA standards specifically require employers to train
employees in the safety and health aspects of their jobs. Other OSHA standards
make it the employer’s responsibility to limit certain job assignments to employees
who are “certified,” “competent,” or “qualified.” This means that they must have
had special training, in or out of the workplace, to perform the job.
Some OSHA standards require employers to keep a list of employees who
participated in the training. Such records show the employer’s good faith in
complying with OSHA standards. This can be an effective defense when
challenging an OSHA citation or contesting a workers’ compensation claim. An
effective program of safety and health training can result in fewer injuries and
occupational illnesses, better morale, and lower workers’ compensation costs.
In its voluntary safety program guidelines, OSHA recommends these elements for a
basic workplace safety and health program:
h Management commitment and employee involvement
h Work-site analysis and identification of hazards
h Hazard prevention and control
h Safety and health training of employees
These recommendations for an effective safety program are very close to what a
forward-thinking management group would demand.
1: The Federal Occupational Safety and Health Act
26
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REVIEW
1. How often does safety training occur at your company?
____ during initial training only
____ every six months
____ every year
____ other ___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
2. How would you improve your company’s job safety and health program?
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
A Manager's Guide to OSHA
_____________________________________________________________
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P
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Anticipating
OSHA
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A Manager's Guide to OSHA
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What to Expect from OSHA
To enforce its standards and regulations, OSHA investigates workplaces and
conducts inspections. But with a limited staff and 7.2 million workplaces to inspect,
the agency cannot check every establishment regularly. In a typical year OSHA is
able to inspect only about 2% of the workplaces in America. Some facilities have
never had an OSHA inspection in the more than 35 years the OSH Act has been in
effect.
Often the first contact an employer has with OSHA is when the receptionist calls the
facility manager to say, “There’s a representative from OSHA here who wants to see
you.”
The OSHA representative may be there to perform a regular, programmed
inspection or to investigate on site a complaint from a present or former employee.
Or the visit may be occasioned by a special OSHA survey that includes that
employer as part of the survey sample.
OSHA’s Changing Image
In more than 35 years of inspection activity, OSHA’s image or posture to the
employers of America has changed. In the early days, OSHA compliance officers
frequently faced a belligerent employer who felt that the inspection activity
represented an intrusion on their business activities.
In the intervening years, time has mellowed positions on both sides. OSHA
compliance officers are better trained, and a greater degree of professionalism
marks their activities. Employers, too, have come to realize that many OSHA
regulations and standards are a minimum level of safe operation and that prompt
compliance makes for a safer and more healthful workplace. And they recognize
that such a workplace helps reduce losses such as production interruptions or
workers’ compensation costs. Professionalism on both sides has replaced
confrontation to a large degree.
OSHA itself says that “a compliance officer represents the agency and is expected
to demonstrate his or her knowledge and expertise in the safety and health field in a
courteous and professional manner.”
2: Anticipating OSHA Inspections
30
Unannounced Investigations
Unlike other federal agencies that give an initial notice of investigation in writing,
OSHA does not normally give advance notice and merely arrives on site and knocks
on the door. Without advance notice, every “establishment” covered by the act is
subject to inspection by OSHA compliance safety and health officers, who are
authorized to:
h Enter without delay and at reasonable times any factory, plant,
establishment, construction site or other areas, workplace, or environment
where work is performed by an employee of an employer
h 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 materials therein, and to
question privately any such employer, owner, operator, agent, or employee
Under very limited special circumstances, however, OSHA may give the employer
advance notice of less than 24 hours. These special circumstances include:
h Imminent danger situations that require correction as soon as possible
h Inspections that must take place after regular business hours or that require
special preparation, such as industrial hygiene surveys
h Where notice is required to ensure that the employer and employee
representatives or other personnel will be present
h Where OSHA determines that advance notice would produce a more
thorough or effective inspection
Denying Admission to Your Premises
A Manager's Guide to OSHA
Most employers will admit OSHA inspectors to their premises to conduct official
OSHA business or inspections without the need for a search warrant. If an employer
refuses to admit an OSHA compliance officer, or if an employer attempts to
interfere with the inspection, the act permits the agency to take appropriate legal
action.
Based on a 1978 Supreme Court ruling (Marshall v. Barlow’s Inc.), OSHA may not
conduct an inspection without an employer’s consent. In the Barlow case the U.S.
Supreme Court held that surprise visits by OSHA inspectors were unconstitutional.
Thus, if an employer refuses to allow an OSHA compliance officer to enter, the
officer must obtain a search warrant to do so.
OSHA inspectors are instructed that if they are denied entry, they are to leave
promptly. OSHA then may go to court and obtain a search warrant based on
administrative probable cause or upon evidence of a violation.
31
OSHA’s Inspection Priorities
The worst situations need attention first, so OSHA has developed inspection
priorities. This section outlines these priorities.
First Priority: Imminent Danger
An imminent danger is any condition in which 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.
Serious physical harm is any type of harm that could cause permanent or prolonged
damage to the body or a temporary disability involving in-patient hospital
treatment.
Injuries or illnesses that are difficult to observe are classified as serious if they
inhibit a person in performing normal functions, cause reduction in physical or
mental efficiency, or shorten life.
Health hazards may constitute an immediate danger when they present a serious and
immediate threat to life or health. There must be a reasonable expectation that toxic
substances such as dangerous fumes, dusts, or gases are present. And the
expectation must be that exposure to these substances will cause such immediate
and irreversible harm as to shorten life or reduce physical or mental efficiency.
OSHA rightly urges workers to inform the supervisor or employer immediately if
they detect or even suspect an imminent danger in the workplace. If the employer
takes no action to eliminate the danger, an employee or authorized representative,
such as a union steward or officer, may notify the nearest OSHA office and request
an inspection. Although the employer has the right to see a copy of the complaint if
an inspection results, the name of the employee is withheld if the employee so
requests.
Responding to Imminent Danger Situations
OSHA may pursue judicial action that can produce a temporary restraining order
(immediate shutdown) of the operation or section of the workplace where the
imminent danger exists.
2: Anticipating OSHA Inspections
If OSHA authorizes an inspection, the OSHA compliance officer asks the employer
to abate the hazard voluntarily and to remove endangered employees from
exposure. Should the employer fail to do this, OSHA may apply to the nearest
Federal District Court for legal action to correct the situation. Before the OSHA
inspector leaves the premises, he or she will advise all affected employees of the
hazard. The inspector also will post an Imminent Danger Notice, a step rarely taken
by the agency. This is serious business and an employer needs to handle an
investigation thoroughly and correct the situation promptly.
32
Walking off the job because of potentially unsafe workplace conditions is not
ordinarily an employee right under federal law, although some state laws provide a
procedure for employees to protest about unsafe working conditions. Walking off
the job may result in disciplinary action by an employer.
Under OSHA rules, however, an employee does have the right to refuse in good
faith to be exposed to an imminent danger. OSHA protects employees from
discrimination if:
h The employee asked the employer to eliminate the danger and the employer
failed to do so
h The danger is so imminent that there is not sufficient time to have the
danger eliminated through normal enforcement procedures
h The danger facing the employee is so grave that “a reasonable person” in
the same situation would conclude there is real danger of death or serious
physical harm
h The employee has no reasonable alternative to refusing to work under these
conditions (such as asking for reassignment to another area)
Second Priority: Catastrophes and Fatal Accidents
OSHA gives second priority for investigation to fatalities and catastrophes resulting
in hospitalization of three or more employees. The employer must report such
incidents by telephone to OSHA within eight hours. OSHA then investigates to
determine if OSHA standards were violated and to avoid recurrence of similar
accidents.
Third Priority: Employee Complaints
A Manager's Guide to OSHA
Complaints by workers of alleged violations of standards or of unsafe and
unhealthful working conditions get third priority in OSHA inspection activities. In
some OSHA area offices, investigating these complaints may be the major work
load.
The OSH Act gives any employee the right to request an OSHA inspection when the
employee feels in imminent danger from a hazard or feels there is a violation of an
OSHA standard that threatens physical harm. For formal complaints, OSHA will
maintain confidentiality, if requested; will inform the employee of any action it
takes on the complaint; and will conduct an informal review of any decision not to
inspect.
When OSHA receives an informal complaint by telephone or an unsigned letter, the
agency usually will telephone the company, send a fax, or write a letter asking
whether the hazard exists or is being corrected. If the company replies promptly and
satisfactorily, then usually an inspection is not made. A copy of the company’s letter
is sent to the complainant (if OSHA knows the complainant’s identity).
33
It is appropriate to remember the “no retaliation” rule in OSHA regulations. The Act
prohibits employers from discharging or otherwise discriminating against an
employee who has exercised a right under this law, including the right to make
safety and health complaints or to request an OSHA inspection. OSHA will
investigate such complaints and if the investigation discloses probable violations,
court action may follow.
Avoiding Employee Complaints to OSHA
OSHA encourages workers to take their concerns to their employer. But
management should understand that under the OSH Act, employees do have the
right to complain directly to OSHA about safety and occupational health concerns
in the facility.
Still, employers can take several steps to avoid having employees complain directly
to OSHA. Such complaints often result in an OSHA inspection of the facility.
A proactive safety and health program spearheaded by a forward-thinking employer
will involve employees, get hazards corrected, and reduce injuries. Employees with
safety and health concerns will be more apt to turn to responsive management to get
hazardous conditions corrected, rather than calling in an outsider such as OSHA.
As noted earlier, OSHA recommends that employees go to the employer first. But
supervisors need to understand employee rights under the act—employees can call
in OSHA without going to the supervisor. Supervisors need to be aware that their
relationships and dealings with employees can encourage an atmosphere of turning
to the supervisor first to correct an unsafe situation, rather than going to the safety
agency.
Management should develop a procedure for handling employee safety and health
complaints, publicize the procedure, and make sure it works. Reinforce the
availability of your internal procedure during new-hire orientation, with the safety
committee, and during crew meetings.
Fourth Priority: “High-Hazard” Industry Inspections
Every 10th programmed inspection is scheduled to be comprehensive regardless of
the establishment’s lost workday case rate. An industrial hygiene or health
inspection may also be conducted. On health inspections in general industry,
businesses are ranked according to each industry’s health hazards, rather than the
industry workday day-injury rate.
2: Anticipating OSHA Inspections
Employers most often encounter an OSHA inspector as a result of the fourth
priority, high-hazard industries. These industries are selected from a “high-hazard
list” developed and provided by the OSHA national office. The list is based on such
factors as incidence rates of death, injury and illness, and employee exposure to
toxic substances. Special emphasis may be regional or national in scope, depending
on the distribution of the workplaces involved. These inspections are frequently
referred to as “OSHA programmed inspections.”
34
Fifth Priority: Follow-Up Inspections
A follow-up inspection determines whether previously cited violations have been
corrected. OSHA does not look kindly on employers who ignore its citations. If an
employer has failed to abate a violation, the compliance officer informs the
employer that it is subject to “Notification of Failure to Abate” alleged violations.
The officer also may propose daily monetary penalties while such failure or
violation continues.
OSHA has initiated a “High Gravity Citation” follow-up inspection program for
high-gravity willful violations, repeat or multiple high-gravity violations, or failureto-abate notices.
Avoiding OSHA Inspections
A Manager's Guide to OSHA
Who can avoid OSHA inspections? Firms usually will not be inspected if they have
10 or fewer employees within an industry classified in an SIC (Standard Industrial
Classification) code that has a lost workday case rate below the national average for
the most recent year. The exception would be if OSHA received an employee
complaint or a report of an alleged imminent danger. Inspections also are unlikely to
be scheduled at firms that underwent a complete inspection during the previous year
and were not cited for any violations.
35
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TRUE OR FALSE
Answer True or False to the following questions:
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________ 1. An employer is required to admit an OSHA inspector onto the
premises.
________ 2.
An OSHA inspector is required to give notice of the visit.
________ 3.
An employer can discipline an employee for walking off the job
for alleged health or safety reasons.
________ 4.
For general industry, OSHA ranks businesses according to each
industry’s health and safety hazards.
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Compare your answers with the author’s responses in the Appendix.
2: Anticipating OSHA Inspections
36
Being Prepared for an OSHA Visit
An OSHA visit is likely to occur at your facility eventually. Be prepared so that you
can present your facility in its best light to the agency inspector.
1. Display the OSHA safety poster (3165) prominently on a key notice board.
2. Prepare to be flexible—compliance officers arrive unannounced, want to
meet with the ranking employer representative, and rarely can be put off or
have the visit postponed. Plan to treat OSHA personnel as professionals.
3. Appoint a local “OSHA coordinator” to coordinate preparations and be the
company’s chief representative or spokesperson in dealing with OSHA.
Ideally, this person is involved with and knowledgeable about the facility’s
safety and health program. Perhaps the human resources manager, the safety
specialist, or the administrative manager could fill this role. Additional
personnel can be added to this “OSHA committee” as needed. All should be
fully trained in the basics of the OSH Act and standards affecting their
business.
4. Be prepared to listen and take notes when an OSHA inspector arrives. Have
an instant-photo camera available so if the OSHA official takes
photographs, a management representative can take side-by-side photos.
This eliminates confusion later about the actual conditions in the plant at a
given moment. Indicate the date, time, and the name of the person taking
the photo. A video recorder can be particularly helpful if it displays date and
time in the photo frame.
A Manager's Guide to OSHA
5. Have basic, OSHA-required record keeping in place. Employers in
manufacturing or construction should have available written copies of their
hazard communication program, including the list of attendees at training
sessions, a copy of the local “lock-out tag-out” program, and access to
employee medical records. Present this information to OSHA if requested.
37
6. Instruct the receptionist or the plant gatekeeper that if an OSHA inspector
should arrive, the ranking facility manager and the OSHA coordinator are to
be notified immediately. The compliance officer should be taken to a nearby
office to await the coordinator. The compliance officer should never be
allowed to enter the facility without a management escort.
7. Think it through logistically—what route should you take if the compliance
officer wants to make a facility tour? Determine a route that will take OSHA
past your best work areas.
8. Alert managers and supervisors to the OSHA officer’s arrival and the
likelihood that an inspection tour will follow. Supervisors should be told
that any written documents will be provided, if requested, only by the local
management OSHA coordinator.
9. Instruct team members to answer truthfully any questions from OSHA,
providing only facts—not opinions, speculation, or guesses.
2: Anticipating OSHA Inspections
38
PREPARATION CHECKLIST
This checklist is a useful tool to review your company’s preparedness for an OSHA
inspection.
‰ All required OSHA posters and notices are clearly displayed on a notice
board.
‰ The receptionist or front-desk security guard has specific instructions for
handling an OSHA inspector’s visit. The official policy is:
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
‰ The OSHA Coordinator for your company is:
(name) ________________________ (title) ________________________
‰ Other members of the “OSHA Management Committee” are:
(name) ________________________ (title) ________________________
(name) ________________________ (title) ________________________
(name) ________________________ (title) ________________________
(name) ________________________ (title) ________________________
‰ All OSHA committee members are trained and knowledgeable of OSHA
standards and regulations for your industry.
A Manager's Guide to OSHA
‰ OSHA records are up-to-date, if requested by a compliance officer.
‰ Proposed routes for the inspection tour are known to committee members
and floor managers.
‰ A communications system is in place to notify all managers and supervisors
that an OSHA officer is on the premises and an inspection is imminent.
‰
Staff members know to respond truthfully to an OSHA inspector, providing
only factual information, and refraining from offering opinions or guesses.
39
Prelude to an Inspection
OSHA has a well-defined approach and routine to its workplace inspections. The
agency informs the business community about its inspection routine and what to
expect from a compliance officer. This helps management plan for the eventuality
of such a visit.
Before going on site, the compliance officer reviews files in the OSHA office on the
establishment to be inspected, the nature of the business, the operations and
processes, and the OSHA standards likely to apply. The officer may gather
equipment necessary to test for health and safety hazards at the employer’s site.
When the OSHA Inspector Arrives on Site
Most OSHA inspections begin with the compliance officer announcing his or her
presence to the employer, presenting official credentials, and asking to meet with
the appropriate employer representative. Making such unannounced visits forces
facility management to respond immediately to the inspector’s requests. If a
company official is not available, the compliance officer usually will wait for up to
one hour before telephoning his or her supervisor. If the delay appears justifiable,
the inspection may be delayed or rescheduled.
OSHA compliance officers carry U.S. Department of Labor credentials bearing their
photograph and a serial number that can be verified by phoning the nearest OSHA
office. The officers also present a business card, but employers should always ask to
see the compliance officer’s credentials and badge. Federal law prohibits
photocopying the credentials.
Employers are within their rights to ask the inspector courteously to obtain a
warrant. The inspector should agree to such a request and leave. OSHA policy calls
for courteous, professional behavior from inspectors. Employers should report to
the area director any compliance officer who is rude or offensive.
OSHA cautions employers with this advice: “Anyone who tries to collect a penalty
at the time of inspection, or promotes the sale of a product or service at any time, is
not an OSHA compliance officer. Posing as a compliance officer is a violation of
the law; suspected impostors should be reported to local law enforcement agencies.”
2: Anticipating OSHA Inspections
40
OSHA’s Opening Conference
Assuming a company official is available to meet with the OSHA compliance
officer when he or she arrives, then the first step is the opening conference. This is
when the employer representative learns why the establishment was selected.
OSHA’s right to inspect an employer’s premises generally must be justified by the
employer’s being selected randomly or in response to a specific employee
complaint.
The Reason for the Visit
The officer explains the purpose of the visit, the scope of the inspection, and the
OSHA standards that are likely to apply. Usually the employer is given copies of
applicable safety and health standards and a copy of any employee complaint that
may be involved (edited to conceal the employee’s identity, if the employee so
requested).
The employer should inquire about and understand the reason for the visit because
the employer has different rights under each purpose. If the visit is a programmed
visit, OSHA generally has the right to inspect the entire facility without limitations.
If the inspection was generated by an employee complaint, then the employer is
entitled to and should carefully consider limiting the inspection to the area or
process that is the subject of the complaint. This way, other potential violations that
might be found in a facility-wide inspection will not get cited.
Employee Representatives
As the opening conference proceeds, the employer is asked to select an employee
representative to accompany the officer during the inspection. This authorized
employee representative also may attend the opening conference.
A Manager's Guide to OSHA
If the employees are represented by a union, the union usually designates an
employee representative to accompany the officer. In nonunion situations, if there is
a plant safety committee, OSHA recommends that one or more members of the
employee committee designate the employee representative.
Where neither group exists, the employee representative may be selected by the
employees themselves. Or the compliance officer will determine if an employee
suitably represents the interests of other employees. The employer is not permitted
to select the employee representative for the walk-through, although some
compliance officers will defer to the employer’s suggestion of a suitable
representative. Another option, where there is no authorized employee
representative, is that the compliance officer may talk to several employees about
workplace safety and health.
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Logs and Records Review
During the opening conference the compliance officer normally asks to see the
employer’s OSHA 300 log to review and verify. Usually the OSHA official also
asks for employee hours worked in each of the past two years and the number of
employees. From these figures the officer calculates the firm’s lost-workday case
rate. If the rate is below the rate most recently published by the OSHA Office of
Statistics for the industry or SIC code in question, and if no employee complaint is
involved, a full-scale safety inspection usually will not be conducted.
Also frequently coming under scrutiny is the employer’s hazard communication
program. This includes availability of material safety data sheets, the lock-out tagout program, and confined space entry plans, if applicable, plus the facility
emergency response plan. In the manufacturing sector the inspector usually will
conduct a brief walk-through to check compliance with the hazard communication
plan. The opening conference typically does not last more than an hour.
If the inspector finds significant deficiencies in any of these programs, the brief
walk-through may be expanded to a comprehensive inspection. If serious health and
safety violations are found or if the employer has a history of violations, the
inspection tour may be expanded.
Firms with a lost workday injury rate equal to or above the national average may
face a comprehensive inspection if they failed to maintain the required injury and
illness records or if the records cannot be verified as accurate.
What OSHA Looks for During an Inspection
In summary, when OSHA comes on site to perform an inspection, the
compliance safety and health officer will typically:
h Check for posting of the OSHA safety and health poster
h Review the OSHA 300 log of injuries for the current year and
two full previous years
h Comment on and note obvious hazards as he or she tours the
facility
h Inquire about the existence of a basic safety and health program
at the facility
2: Anticipating OSHA Inspections
h Inspect for compliance with OSHA standards affecting that
industry or business
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Management Actions at the Opening
Conference
Management is not merely at the mercy of the OSHA compliance officer.
Management should take the following actions to help ensure the opening
conference goes smoothly.
1. The management OSHA coordinator should chair the meeting as the
company spokesperson.
2. Make a positive first impression. Management members should present
their business cards with titles. Each management representative should be
introduced by name and title.
3. Treat compliance officers as the professionals they are. They are frequently
college-educated and many have wide experience in their work. Properly
approached, officers can help you improve your safety and health program.
4. The OSHA official may ask for the name of the firm’s chief executive
officer. You should provide this but also emphasize that the local facility
manager or OSHA coordinator is the person to receive all OSHA
communications for the facility.
5. Make sure that the reason for the inspection is clearly stated and understood
in the opening conference. Is it an employee complaint visit, programmed
inspection, or follow-up inspection? If the purpose is to investigate an
employee complaint, ask for a copy of the complaint, if it was not already
offered.
6. Ask questions about the scope of the inspection and tour so that you know
what you are facing before you leave the opening conference.
Special Circumstances to Be Prepared For
A Manager's Guide to OSHA
Most courts have held that if the employer insists on a warrant for entry when the
inspection is generated by an employee complaint, then the scope of the inspection
must be limited to the area cited in the complaint. The thinking? The warrant and
resulting inspection should be only as broad or as narrow as the complaint.
If the compliance officer indicates that industrial hygiene sampling will be done, try
to determine the type and when it will be done. Such industrial hygiene visits are
usually scheduled with several days’ notice. Then management can arrange for sideby-side testing by a management-designated industrial hygienist.
Express serious concern if an inspector plans to put personal monitoring equipment
on employees and does not remain in the area to observe. This can result in
sampling contamination by unsupervised employees.
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DO NOT ALTER OR DELETE THIS LINE – It is here for spacing purposes.
DO NOT ALTER OR DELETE THIS LINE – It is here for spacing purposes.
OPENING CONFERENCE REVIEW
Answer the following by filling in the blanks.
1. The opening conference typically lasts up to _________________
hour(s).
2. The _________________ should preside over this conference.
3. It is important to make a _________________ first impression with the
OSHA representative.
4. The _________________ cannot usually designate the employee
representative.
5. During the opening conference, the OSHA inspector will ask to see the
employer’s _________________ log.
DO NOT ALTER OR DELETE THIS LINE – It is here for spacing purposes.
DO NOT ALTER OR DELETE THIS LINE – It is here for spacing purposes.
Compare your answers with the author’s responses in the Appendix.
2: Anticipating OSHA Inspections
44
The Inspection Tour
After the opening conference, the compliance officer and accompanying
representatives proceed through the establishment, inspecting work areas for
compliance with OSHA standards. OSHA says the compliance officer should
determine the route and duration of the inspection.
Checking for Compliance
The compliance officer observes conditions and takes notes and may speak with
employees, examine records, or take instrument readings. The officer also checks
that the OSHA poster is in place. When apparent violations are corrected
immediately, as is often the case in simple hazards or unsafe work practices, the
inspector normally records the corrections to help in judging the employer’s “good
faith” efforts in compliance.
During the inspection, the compliance officer usually will point out to the employer
representative any unsafe or unhealthful conditions observed. If the employer
representative desires, the officer also will discuss possible corrective actions.
The compliance officer may take photographs to record apparent violations or other
hazardous conditions observed. Most often photos are taken in imminent danger
situations and in the investigation of serious accidents.
If chemicals are used in the facility, the officer normally will check for compliance
with the federal OSHA hazard communication standard. Employers must establish a
written hazard communication program that includes provisions for a chemical
inventory, container labeling, material safety data sheets, and an employee-training
program.
OSHA emphasizes that trade secrets observed by the compliance officer will be kept
confidential. The employer may require that the employee representative have a
security clearance for any area in question. Any trade-secret material that OSHA
requests should be marked “Trade Secrets—Confidential.”
A Manager's Guide to OSHA
OSHA Officer Interaction with Company Employees
Officers may consult employees during the inspection, provided there is no
disruption to work. Officers also may stop and question workers in private about
safety and health conditions and practices in their workplaces. OSHA inspectors are
instructed that they are to minimize work interruptions while talking with
employees. And, of course, all employees are protected under the act from
discrimination by the employer for exercising their safety and health rights.
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Management Actions During the
Inspection
As in the opening conference, there are several guidelines management can follow
during the inspection to help put the company’s best face forward and ensure the
best outcome.
1. Have an informed and knowledgeable person, such as the local OSHA
coordinator, with the compliance officer at all times. Do not let the officer
roam!
2. Be courteous but also listen a lot. Without appearing to be uncooperative,
try to avoid answering detailed, technical questions. Avoid admitting that a
condition is a violation or that it can be abated within a certain time period.
A nontechnical person such as a human resources manager is perhaps the
best escort, rather than a supervisor, plant manager, or technical specialist.
3. List what instruments the compliance officer uses, with whom the officer
speaks, and what photos are taken.
4. The inspector may want to speak to employees. If a union representative
wants to be present, management should insist that its representative be
present too.
5. If employees are cooperative, have a supervisor do a follow-up interview
immediately to determine what was asked. Also advise employees that they
are not required to sign anything requested by the inspector.
6. Do not provide documents without first making sure they are required by
the Act or are within the scope of a warrant. Any documents that are trade
secrets should be marked “Trade Secrets—Confidential.”
2: Anticipating OSHA Inspections
46
The Closing Conference
After the inspection tour, a closing conference normally takes place between the
compliance officer and the employer and employee representative. OSHA considers
this meeting “a time for free discussion of problems and needs, a time for frank
questions and answers.”
The compliance officer may point out unsafe and unhealthful conditions observed
on the inspection and indicate apparent violations for which a citation may be
recommended or issued. The officer normally will indicate the applicable sections
of the OSHA standard that are in apparent violation. Remember that unlike police
agencies, OSHA is not permitted to issue “warnings,” even for a first-time offense.
The employer is also told of appeal rights if citations are issued. But the compliance
officer does not indicate any proposed penalties. Those are the decision of the
OSHA area director, after receiving the compliance officer’s full inspection report.
During the closing conference the employer is encouraged to produce records
(safety and health training, work-site auditing and correction efforts, etc.) to show
compliance efforts. Such information helps OSHA determine how much time may
be needed to abate an alleged violation.
A Manager's Guide to OSHA
At the closing conference the employer also is given a copy of the OSHA booklet
“Employer Rights and Responsibilities Following an OSHA Inspection” (OSHA
publication #3000). Besides explaining rights and responsibilities, this helpful book
outlines steps for an employer to take after an inspection.
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Management Action Steps at the Closing Conference
1. The compliance officer normally will schedule a closing
conference, but do not let the officer leave without such a
conference.
2. Take detailed notes of what is said, even using a tape recorder if it
will not stifle discussion.
3. Be careful not to express agreement with the compliance officer’s
observations and citations. Such admissions could be damaging if
you want to appeal a citation.
4. Question any violations closely and ask for the specific OSHA
standard violated. If the inspector indicates the possibility of a
citation under the General Duty Clause, ask what backup material is
being used to support the assumptions.
5. Do not make specific promises about abatement dates. You will
have adequate time when a citation arrives to see what the OSHA
officer has suggested for abatement time frames.
2: Anticipating OSHA Inspections
48
DO NOT ALTER OR DELETE THIS LINE – It is here for spacing purposes.
DO NOT ALTER OR DELETE THIS LINE – It is here for spacing purposes.
TRUE OR FALSE
Answer True or False for each of the following:
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_______ 1. A closing conference should occur.
_______
2.
Citations are issued at the closing conference.
_______
3.
Warnings are issued at the closing conference.
_______
4.
You should not make promises about abatement dates at the
closing conference.
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DO NOT ALTER OR DELETE THIS LINE – It is here for spacing purposes.
A Manager's Guide to OSHA
Compare your answers with the author’s responses in the Appendix.
49
What to Do After and OSHA Inspection
h Meet and debrief the team members who had contact with the OSHA
compliance officer. Determine what was said by the compliance officer and
how the management member responded.
h List any documents or records handed over to the OSHA compliance officer.
h Be sure you understand the expected citations. At this stage do you agree—
or disagree—with the citations that will likely be coming your way? List the
pros and cons of each situation.
h Set up the assignments to correct items referred to by the compliance
officer. The quicker you are able to correct or “abate” hazardous conditions
that the officer has commented on, the better shape you will be in to
challenge citations, penalties, and abatement dates at the informal
conference.
h Gather information and data in defense of the citations you are likely to
contest. For example, safety committee minutes or safety inspection forms
that reflect action taken to correct some of the hazards cited can be valuable
support.
h When the citations arrive in your mail, date-stamp the letter, and then crosscheck the citations with the relevant OSHA standard. Determine what you
will contest and what you will not. Correct the items you accept and pay the
penalty.
2: Anticipating OSHA Inspections
A Manager's Guide to OSHA
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