By Janet L. Keyes, CIH and Carol A. Keyes, CSP
What would you do if OSHA showed up at your door? Or if you received a letter from OSHA, stating that “MNOSHA received a complaint of safety and/or health hazards…The alleged hazards are as follows:”
Would you open your doors, say, “Come on in,” and give the inspector free rein to wander? Or would you bar the door and refuse entry? We don’t recommend either approach.
Having the required safety and health programs, providing necessary training to employees, and controlling the hazards in your shop are the most important steps to being prepared. But even if you have all of that, an OSHA inspection can be nerve-racking if you aren’t ready for it and don’t know what to expect.
Why will OSHA inspect?
The most likely reason: a complaint. Anyone can file a complaint with OSHA, but not all complaints are treated equally. Complaints signed by current employees or their representatives are taken the most seriously. Those are considered formal complaints. Nonformal complaints could be from unsigned complaints from current employees or could be from ex-employees. All complaints are evaluated to determine if they seem valid (so an employee complaint about the coffee being bad will not result in a visit from OSHA).
OSHA gives the highest priority to imminent dangers – those situations that could be life-threatening. For those, OSHA is likely to show up. But OSHA won’t take an angry ex-employee’s word about an imminent danger. Instead, an agency director or supervisor will evaluate the information. If it seems legit, an inspector will be sent out right away.
Formal complaints trigger onsite inspections. Those inspections are limited in scope to the areas of the complaint. If the complaint is about a missing guard on equipment, for instance, the inspector will not ask if your employees have had training on respirators.
Informal complaints trigger those letters mentioned above. You must respond to them, either explaining why the hazard does not exist or explaining what corrective action has been taken. If you do not respond within the time listed on the letter (usually two days for a complaint related to COVID, seven days for other complaints) or if your response seems lame, OSHA may show up on your doorstep.
OSHA may also do (somewhat) random inspections. Those could be done because of a special emphasis program, such as for isocyanates or silica exposure. Or it could be because you’re in an industry with a high rate of injuries or illnesses. If you’re a small shop with fewer than ten employees, this type of inspection is not likely.
Having an employee injured so badly that overnight hospitalization is required will also trigger an inspection.
You can tell them to go away. We don’t recommend that – it just forces OSHA to get a warrant, gaining you only a bit of time. If OSHA has to get a warrant, they will likely spend a lot more time in your facility.
The inspector will ask for a manager or owner. Then he or she will show credentials and explain the purpose of the inspection. You’ll be asked for your OSHA 300 log (if you have fewer than 11 employees, you don’t have to have this). You’ll also be asked for written programs and safety training records, depending on the type of inspection. That will be followed by a walk through your facility or, if it was a complaint, through the part of your shop that pertains to the complaint. Go with the inspector. Take notes on what is found. Take pictures, too, especially of anything the inspector photographs. The inspectors cannot share their pictures with you, so if you want to dispute any finding, you’ll need your own documentation.
The inspector is willing to talk with you during the walkthrough. Feel free to ask questions. If the inspector starts taking pictures of something, ask why if you don’t know why. If the inspector points out a hazard that you can correct right away, such as a bad electrical cord, fix the hazard.
Inspectors will talk with some employees. They’ll ask if the employee has any health or safety concerns and if the employee received required training. They might ask how certain jobs are done. These conversations are confidential: you can’t listen in and you should not ask the employee what was told to the inspector.
At the end of the inspection, the inspector will hold a closing conference, where findings and potential citations will be reviewed. If you think the inspector got something wrong, discuss it then. This is not the last word on citations – the inspector will propose citations but those have to be reviewed and approved by OSHA supervisors. The inspector will ask how soon you can get a problem corrected. That will become your abatement date, so you want to ask for a generous but reasonable amount of time.
Our basic rules for the inspections:
- Accompany the inspector.
- Don’t be unreasonable. Don’t argue. Don’t be belligerent.
- Don’t hide, don’t cover up, but don’t volunteer.
- Take good notes and take pictures.
- Correct what you can fix immediately.
Not all OSHA inspections result in citations. Inspectors do not have quotas. But if you were cited, you’ll receive a letter by certified mail, listing those citations and the process you need to follow. Once you receive that letter, keep track of time. You have deadlines to meet. If you miss the deadlines, fines can go up tenfold.
- You need to post the citations near the hazard, so employees can see them.
- You must correct the hazard.
- You must file progress reports, telling OSHA it has been fixed.
- You may need to pay a penalty.
- If you think the citation was wrong, contest it. Even if you admit that you were dead wrong, you can contest the severity, the amount of penalty, or the abatement dates.
We usually recommend contesting the citation. OSHA doesn’t get mad if you contest and doing so is likely to result in lowered penalties. The one time we typically advise against contesting citations is when we think the citations were justified and you are offered an expedited informal settlement agreement (EISA). An EISA, offered only for the not-so-bad inspections, reduces your penalty by 30% in exchange for you agreeing to not contest the citations.
You will survive
OSHA inspectors are usually pretty nice people – they go into this job because they care about people. Their aim isn’t to intimidate you, but to help you do the right thing and keep employees from harm. By law, they must cite you and fine you if violations are found. They take into consideration if they think you are trying to run a safe operation, if you show you care about your employees’ safety and health, and if you’ve made some effort to comply. They also take into consideration the size of your business. Be respectful, pay attention to deadlines, and you will survive it. And you’ll probably find it less painful than a sales tax audit.
This article originally appeared in AASP News (May 2021). It is intended to provide general information (no advice) about current safety topics. To discuss your specific concerns and how CHESS may help, please contact CHESS at 651-481-9787 or firstname.lastname@example.org.