General Suggestions to Avoid Running Afoul of OSHA

Nicholas Fortuna, March 19, 2014.

The Occupational, Safety and Health Administration (OSHA) is charged with issuing standards to protect workers’ safety on the job. Employers are required to know and follow the applicable rules, regulations, and standards affecting their industry/workplace and supply all necessary safety equipment to protect their employees. Even if there is no specific standard, rule or regulation pertaining to an employer’s workplace, there is a general duty requirement to keep employees and the workplace free from hazards. Any employer in the United States and its territories (with a few exceptions) with one or more employee is subject to OSHA’s authority and must follow its dictates.

There is no reliable way to predict when an OSHA inspector will arrive at an employer’s doorstep, but the inspector will arrive at some point. OSHA can inspect an employer’s work site without advanced notice and employers should be ready.  These inspections are not limited to employers with a large number of employees. Forty percent of the inspections conducted by OSHA are of employers with 10 or fewer employees. What follows are some general tips an employer can follow to help prevent it from being caught off guard by OSHA.

Hazard Assessment

As part of an overall safety plan, an employer has to perform a hazard assessment of the worksite, each job, and any personal protective equipment issued and then must put the results in writing. The analysis should include a worksite survey, and examination of job, processes, and phases of work.

The worksite survey must identify sources of hazard and categorize them. Examples of some categories are Heat, Harmful Dust, Chemical, Compression (roll-over), Noise, Fire, Penetration, and Impact. Following the survey, the employer should create a written check list of the hazards found and a corresponding safety measure to minimize or eliminate the hazard. OSHA has specific standards for particular hazards which must be followed.

Individual jobs and tasks at the worksite must be assessed for hazards as well. A good approach would be to perform a four step job safety analysis:  (1) Select a job to be analyzed; (2) Separate the job into basic steps; (3) Identify the hazard associated with each step; and (4) Implement safety measures to control each hazard. The job safety analysis should be in writing and updated as job requirements change.

Personal protective equipment must be surveyed and the results put in writing. Initially, an employer should identify equipment employees should have to ensure their safety, such as, goggles, steel toed boots, harnesses, etc. The employer must then provide the necessary personal protective equipment to employees and require its use. If an employee fails to use personal protective equipment provided by the employer, OSHA will hold the employer responsible and the employer will be cited.

Written Safety Plan and Training

After the hazards are identified and each appropriate safety measure to control for each hazard is determined, they must be put in writing as part of the overall safety plan. All employees must be provided with access to the written assessment and corresponding safety measures. The plan must be implemented and the employees trained on its operation. Employees must be made aware of known hazards at the workplace and the safety protocols to control for those hazards.

OSHA On-Site Consultation Program

OSHA provides a free program where it will work with the employer and identify the hazards and what must be done to ensure workers’ safety.  If the employer enrolls in OSHA’s consultation program, no inspection citations will be given to the employer while the employer is enrolled in the program. The employer must, however, implement the measures required within the timelines given by OSHA. The consultants are not permitted to report to OSHA’s enforcement division anything about the enrolled employer other than confirmation of its enrollment. This is done to allow a free flow of information between the employer and OSHA consultants about hazards without fear of punishment.

OSHA Inspection

Generally, an employer should not deny access to an OSHA inspector. It is insufficient to claim one is not ready for an inspection. When the OSHA inspector arrives, review the inspector’s credentials and call OSHA to verify that the person is actually an OSHA inspector. (There are many reasons why someone would want to get access to an employer’s work site and pose as an OSHA inspector – industrial espionage, sabotage, etc.)  An employer representative can and should shadow the inspector during the inspection and take copious notes.

The required documentation the employer must maintain and make available for review upon inspection are:  written hazard assessment; records of employee training for the past three years; emergency action and fire prevention plans; safety related disciplinary records; records of exposure to toxic substances; written safety plans; and a written record of all injuries at the work place for the past five years. Depending on the nature of the hazards at the employer’s worksite, OSHA may have specific standards requiring additional documentation. An employer is charged with knowing what documentation it must provide on inspection.

At the end of the inspection, if a violation is found and a citation issued, the employer can respond in one of three ways: (i) it can accept the violation, (ii) contest it or (iii) request an informal conference. At the informal conference the employer may negotiate the fine and obtain information from OSHA as to how it wants the employer to address the violation.

Reporting

One last proviso, if there is ever a catastrophic event at the worksite; an employer has eight hours to report it. A catastrophe is defined by OSHA as one or more deaths or three or more employees hospitalized for the same incident. The hotline to call in a catastrophe is (800) 321-6742. Failure to self-report a catastrophe as defined by OSHA will result in significant penalties.