What we refer to as OSHA: The full legal name of the OSH Act is the Williams-Steiger Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq. – these are the statutes). For the practical application of the statutes, the listing of all the rules and regulations are located in Title 29 of the Code of Federal Regulations (29 CFR). In this article, we will call the statutes, rules and regulations the Act. The purpose of this article is to discuss OSHA inspection procedures, citations and penalties. For a better understanding of these issues, we are looking at 29 CFR 1903 paragraph by paragraph, broken down to laymens’ language and sprinkled with commentary.
Every employer covered under the Act is required to “furnish to 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.” Who are these employers covered by the Act? The quick answer to which employers are required to conform to the Act are those who have eleven or more employees, on the same shift, at the same location. Regarding the requirement to provide a safe work environment, the law is not clear what the obligation of the employer is if the employer is not covered under the Act.
Another obligation for employers covered under the Act is to comply with OSHA standards published under the Act. For most businesses, these are covered under 29 CFR 1910 and 29 CFR 1926. Employees of these companies are also required to comply with the standards. This means everyone is working as a team to promote safety in the workplace – this is an obligation under law.
According to the Act, the Department of Labor is authorized to conduct inspections, and to issue citations and penalties for alleged violations. The Act also “authorizes the Secretary of Health, Education, and Welfare to conduct inspections and to question employers and employees in connection with research and other related activities.” Simply stated, the Department of Labor is the police and everything an employer discloses to the Secretary of Health, Education, and Welfare under the guise of research and surveys will get funneled to the police.
29 CFR 1903 prescribes rules and policies for the enforcement of inspections, citations and penalties. The Act contains an interesting perspective on the authority of the agents of OSHA. It states, “In situations where this Part 1903 sets forth general enforcement policies rather than substantive or procedural rules, such policies may be modified in specific circumstances where the Secretary or his designee determines that an alternative course of action would better serve the objectives of the Act.” This means, as long as an agent can demonstrate his actions are in the best interests of the statute, he is not limited to the rules governing his conduct. Be mindful of this.
Every employer covered under the Act is required to have posted in the workplace the notices required by OSHA and DOL. These are posters informing employees of the protections and obligations provided for in the Act. The law provides for employees to seek information of specific safety and health standards from the employer or the nearest office of the Department of Labor. This is one reason every employer should make their safety policies clear and have specific practices and procedures bound in a safety manual and distributed to every employee and make at least one person on staff available to answer questions. It is in the best interest of the employer to keep the conversation within the workplace. You can bet if an employee seeks advice from the DOL, an inspection of the workplace will soon follow.
The notices must be posted in a conspicuous location, where employee notices are usually posted, at each business location, including remote site operations. The employer must insure the notices are not altered, defaced or covered (hidden). The employer is also required to post notices from OSHA approved State agencies. Reproductions or copies of federal and State posters are allowed as long as each poster is printed on a minimum 8.5 by 14 inch media (legal size) and the printing is at least 10 point type and headings at least 36 point. Any employer failing to comply with this requirement will be subject to citation and penalty.
Compliance Safety and Health Officers of the Department of Labor (Officers, Officer) are authorized to enter any and every work venue of any employer covered under the Act at reasonable times. The employer cannot detain them. The Officers are authorized to inspect and investigate, within reasonable limits and in a reasonable manner, the place of employment and the conditions therein, including all structures, machines, apparatus, devices, equipment and materials. The Officers are authorized to interview and question anyone and everyone. The Officers are authorized to review all records required by the Act, with the exception that the Officer must have a security clearance to review records that have been classified by the United States government. In addition to these intrusions, the representatives of the Secretary of Health, Education, and Welfare are authorized to make inspections and to question employers and employees in order to conduct their research. On top of all this, this federal authority shall not affect the authority of any State authorized agency to conduct inspections pursuant to their statutes. In other words, your business has an open door to curious, or fishing, bureaucrats.
If the employer refuses to permit the Officers access into his place of business, to enter without delay and at reasonable times any place of employment, to inspect, to review records, or to question anyone, or if the employer refuses to allow an employee representative to accompany the Officer, the Officer shall terminate the inspection or confine the inspection to other matters. The Officer must try to find out why the employer will not allow the inspection and then he must report the refusal and the reasons to the Area Director. The Area Director will then consult with the Regional Solicitor (this is a government attorney). The solicitor will take appropriate action, according to the statute, including compulsion. This means, if you refuse the Officer access, you will be in big trouble.
If the employer has a previous history of impeding Officers in their duty, compulsory process will be made in advance of the attempted inspection. Compulsory process will be sought if the inspection is conducted a great distance from the local office and much time and funds would be expended in returning to obtain a warrant. Compulsory process will also apply if specialized equipment and experts are hired to participate in the inspection. Compulsory process is the institution of any appropriate action, including ex parte (one-sided; benefits one party without notice to the other party) application for an inspection warrant or its equivalent. The statute favors ex parte inspection warrants. This means, the Officers will attempt to conduct the investigation without you receiving notice and/or without your knowledge.
Any cooperation on your part does not imply, nor is it conditioned upon, a waiver of any cause of action, citation, or penalty under the Act. Officers are not authorized to grant any waivers. This means good behavior on your part does not necessitate good conduct or empathy on the Officers part.
Don’t expect an Officer to call before he comes. Advance notice of an inspection by an Officer will not be given except in the cases 1) of imminent danger, so the employer may abate the danger as early as possible; 2) where the inspection may require special preparation or may better be conducted after normal business hours; 3) where necessary to assure all the right people show up; or 4) of any circumstance where the Area Director determines advance notice will enhance the probability of an effective and thorough inspection. Anyone caught tipping an unauthorized notice to an employer can be fined up to $1000 and/or face six months in prison. This means, in most cases, expect to be caught by surprise when it is your time for inspection. To use the Biblical phrase: they will come as a thief in the night.
Times and places for inspections are determined by the Area Director and Officers. When an Officer arrives for inspection, he will present his credentials, explain the nature and purpose of the inspection and indicate the scope of the inspection and the records necessary to conduct it. If these records are not satisfactory, he is authorized to require more records for review. This means, once the Officer arrives, explains who he is and what he is there for, he is not limited by this scope. The Officer is authorized to expand the scope as he sees fit.
During the inspection, an Officer has the authority to take a sample or photo of anything related to the inspection. He may employ any reasonable investigative technique and question anyone in the company. He must reasonably protect trade secrets and he must observe safe practices (such as, not using flash or spark producing instruments in volatile environments), obey safety and health rules and use appropriate PPE. As much as possible, the inspection shall not disrupt the employer’s operations. When the inspection is completed, the Officer is required to confer with the employer and will informally advise him of any safety and health violations. The employer is allowed to bring to the Officer’s attention any mitigating factors the Officer may have overlooked. In other words, the inspection must be conducted with professionalism and an attitude of fairness.
The Officer(s) will be in charge of the inspection. The employer is allowed a representative and the employees are allowed a representative of their choosing. The representative will accompany the Officer during the physical inspection for the purpose of aiding the inspection. The Officer may allow additional representatives of the employer and employees where he determines such additional assistance will aid the inspection. Different employer and employee representatives may accompany the Officer during different phases of the inspection if this will not interfere with the conduct of the inspection. The Officer has sole authority to resolve disputes regarding who is the authorized representative of the employer and employees and during which phases. The Officer is allowed to consult with a reasonable amount of employees in order to make this determination.
The representative authorized by the employees must be an employee of the employer. However, if the Officer determines there is good cause to be accompanied by a third party who is not an employee of the employer, such as an industrial hygienist or safety engineer, the third party may accompany the Officer. The Officer is authorized to deny the right of accompaniment to any person who interferes with a fair and orderly inspection. The Officer must restrict accompaniment where trade secrets or United States classified information could be compromised.
The employer is allowed to identify to the Officer areas which might contain or reveal a trade secret. The employer is allowed to restrict representative accompaniment for the Officer in such areas. If no representative is available, the Officer may consult about safety and health issues with a reasonable number of employees who work in the restricted areas. In any event, all samples and photos taken from such areas shall be labeled “confidential – trade secret.”
All information obtained by an inspection which might reveal a trade secret shall be considered confidential and shall not be disclosed. However, the information may be disclosed to other Officers or employees involved with the inspection. In all cases, the Secretary, the Commission, or the court shall issue such orders as may be appropriate to protect the confidentiality of trade secrets. If any officer or employee of the United States or any department or agency thereof shall make known in any manner or extent not authorized by law any information related to trade secrets, they will be subject to fines up to $1000 and/or imprisonment up to one year.
During the inspection, the Officer is authorized to interview any and all employees concerning matters of occupational safety and health. Any employee who believes any violation of the Act to exist in the workplace shall be allowed the opportunity to bring this to the attention of the Officer.
Any employee who believes a violation of the Act exists in the workplace may request an OSHA inspection by giving notice to the Area Director or an Officer. The notice shall be in writing and shall give reasonable grounds for the notice and it shall be signed by the employee. A copy of this notice will be delivered to the employer no later than the time of the inspection. The names of the employees and/or their representatives will be removed from the copy given the employer and any other copies published or made available by the DOL, if requested by the employee.
If, after receiving the notice of alleged violations, the Area Director determines the notice meets the requirements and there are reasonable grounds to believe the violations exist, he shall send out an Officer to inspect as soon as possible. However, the inspection is not limited to matters contained in the notice. No employer shall discharge or in any manner discriminate against any employee because of any complaint or having caused to be instituted any proceeding or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.
However, if, after receiving the notice of alleged violations, the Area Director determines an inspection is not warranted because there are no reasonable grounds to believe that a violation or danger exists, he shall notify the complaining party in writing of such determination. The complaining party may then appeal, in writing, to the Assistant Regional Director and, at the same time, provide the employer with a copy of such statement by certified mail. The employer may submit an opposing written statement of position with the Assistant Regional Director and, at the same time, provide the complaining party with a copy of such statement by certified mail. Upon the request of the complaining party or the employer, the Assistant Regional Director, may hold an informal conference in which the complaining party and the employer may orally present their views. After considering all written and oral arguments, the Assistant Regional Director shall affirm, modify, or reverse the determination of the Area Director and furnish the complaining party and the employer with a written notice of this decision. This decision will be final.
Whenever an Officer concludes conditions or practices exist which could reasonably be expected to cause death or serious physical harm, he shall immediately inform the affected employees and employers of the danger and that he is recommending a civil action to restrain such conditions or practices and for other appropriate relief, such as fines and penalties. The Officer may then issue citations and notices of proposed penalties due to the imminent danger even though, after being informed of such danger by the Officer, the employer immediately eliminates the imminence of the danger and initiates steps to correct the situation. In other words, examine your business operations thoroughly. If any dangerous operations exist, eliminate them before the Officer knocks on your door.
The Area Director shall review the Officers’ inspection reports. On the basis of this review, if the Area Director believes the employer has violated any requirement, standard or rule of the Act he shall issue the employer a citation, or a notice of de minimis (too trivial to take notice) violations which have no direct or immediate relationship to safety or health in the workplace. De minimis notices might not include financial penalties but they may contain orders for corrective action. The citation of de minimis notice will be issued even if, after being informed by the Officer of the violations, the employer takes immediate steps to correct the situation. All notices must be issued promptly and no citation may be issued later than six months after the inspection or alleged violation. A word of caution, as stated above, find your dangers before the Officer arrives, even if you have to hire a professional to help you. Furthermore, once you have encountered an agent of OSHA, don’t expect to be issued a de minimis. When an agency is funded through penalties, don’t expect them to view anything as trivial.
If a citation is issued, it shall describe, in reasonable detail, the nature of the violation, referencing the sections of the Act, standard, rule or regulation. The citation shall fix a reasonable time to correct the dangers and come into compliance. If a notice of de minimis violations is issued, a copy will also be sent to the employee who issued the complaint, if applicable.
If the Area Director determines that a citation is not warranted, the informal review procedures shall be applicable. After considering all views presented, the Assistant Regional Director shall affirm the determination of the Area Director, order a reinspection, or issue a citation if he believes the inspection disclosed a violation. The Assistant Regional Director shall furnish the complaining party and the employer with written notification of his determination and the reasons. This determination shall be final and is not subject to review.
Every citation shall state that the issuance of a citation does not constitute a finding that a violation of the Act has occurred unless there is a failure to contest the citation or, if contested, unless the citation is affirmed by the Review Commission.
No citation may be issued to an employer because of a rescue activity undertaken by an employee of that employer with respect to an individual in imminent danger unless: 1) the employee is designated or assigned by the employer to have responsibility to perform or assist in rescue operations, and the employer fails to provide protection for the safety and health of the employee, including failing to provide appropriate training and rescue equipment; or 2) the employee is directed by the employer to perform rescue activities in the course of carrying out the employee’s job duties, and the employer fails to provide protection for the safety and health of the employee, including failing to provide appropriate training and rescue equipment; or 3) the employee is employed in a workplace that requires the employee to carry out duties that are directly related to a workplace operation where the likelihood of life-threatening accidents is foreseeable and the employee has not been designated or assigned to perform or assist in rescue operations but voluntarily elects to rescue such an individual on the basis the employee was not previously informed by the employer a) of the arrangements for rescue, b) not to attempt rescue, and c) of the hazards of attempting rescue without adequate training or equipment.
For purposes of this topic, the term “imminent danger” means the existence of any condition or practice that could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated.
If an employer has been ordered to correct a dangerous situation or practice, an employer may file a petition for modification of abatement date when he has made a good faith effort to comply with the abatement requirements of a citation, but it has not been completed due to factors beyond his reasonable control. A petition for modification of abatement date shall be in writing and shall include the following information: 1) All steps taken by the employer, and the dates of the action. 2) The specific additional abatement time necessary in order to achieve compliance. 3) The reasons such additional time is necessary. 4) All available interim steps being taken to safeguard the employees against the cited hazard during the abatement period. 5) A certification that a copy of the petition has been posted and, if appropriate, served on the authorized representative of affected employees and a certification of the date upon which such posting and service was made.
A petition for modification of abatement date shall be filed with the Area Director of the DOL who issued the citation no later than the close of the next working day following the date on which abatement was originally required. A later-filed petition shall be accompanied by the employer’s statement of exceptional circumstances explaining the delay. A copy of the petition shall be posted in a conspicuous place where employee notices are regularly posted or near the location where the violation occurred. The petition shall remain posted for a period of ten working days. Where affected employees are represented by an authorized representative, the representative shall be served with a copy of the petition.
Affected employees or their representatives may file an objection in writing contesting a modification of abatement with the Area Director. This must be filed within ten days of the posting of the petition for abatement. Uncontested petitions shall become final orders; however, no petition will be approved sooner than fifteen days after posting. Petitions objected to by the Secretary or contested by employees shall be forwarded to the Commission within three working days after the expiration of the fifteen day period.
Upon issuance of a citation, and within a reasonable time after the termination of the inspection, the Area Director shall notify the employer of the proposed penalty, or that no penalty is being proposed. This service shall be by certified mail or by personal service of the Officer. Upon receipt of this notice, the employer has fifteen working days to notify the Area Director in writing that he intends to contest the citation before the Review Commission. Failure to act shall deem the citation to be final and not subject to review by any court or agency. This means, if you are served with an adverse notice, act immediately. Waiting to the last minute could jeopardize your business’ well being.
The Area Director shall determine the amount of any proposed penalty, giving due consideration to the appropriateness of the penalty with respect to the size of the business, the gravity of the violation, the good faith of the employer, and the history of previous violations. Appropriate penalties may be proposed with respect to an alleged violation even though after being informed of such alleged violation by the Officer, the employer immediately abates, or initiates steps to abate, such alleged violation. Penalties shall not be proposed for de minimis violations which have no direct or immediate relationship to safety or health. Once again, know your workplace and correct dangerous situations and practices before they come to the attention of an Officer.
Upon receipt of a citation, the employer shall immediately post the citation, or a copy of it – unedited, at or near each place where an alleged violation referred to in the citation occurred. If it is not practicable to post the citation at certain locations due to the nature of the operations, the citation shall be posted where employee notices are regularly posted. If employees are dispersed to different and various work sites, the posting shall be at the main site from where they are dispersed. The notice shall remain posted until the violation has been abated. If the citation is being contested, it must remain posted but the employer is allowed to post a notice the citation is being contested and explain the reasons for contesting. The employer shall take steps to ensure that the citation is not altered, defaced, or covered (hidden). Notices of de minimis violations need not be posted.
Any employer who has been issued a citation or notice of proposed penalty may notify the Area Director in writing he intends to contest the citation or proposed penalty before the Review Commission. This notice to the Area Director must be postmarked within fifteen working days of the receipt by the employer of the notice of proposed penalty. The employer’s notice of contest must specify whether it is directed to the citation or to the proposed penalty, or both. The Area Director must immediately forward this information to the Review Commission. Remember, as we discussed above, any notice that remains uncontested after fifteen days will stand uncontestable. So do not delay filing a notice of contest.
Any employee or representative of employees to whom a citation has been issued may file a written notice with the Area Director alleging the period of time fixed in the citation for the abatement of the violation is unreasonable. This notice must be postmarked within fifteen working days of the receipt by the employer of the notice of the proposed penalty or notice that no penalty is being proposed. The Area Director must immediately forward this information to the Review Commission.
If an inspection reveals an employer has failed to correct a violation for which a citation has been issued within the time frame prescribed, the Area Director shall consult with the Regional Solicitor. The government attorney will then notify the employer of the failure and of the additional penalty for this failure. The period for the correction of a violation for which a citation has been issued shall not begin to run until the entry of a final order of the Review Commission for any review proceedings initiated by the employer in good faith, that is, not solely for delay or avoidance of penalties.
The notice for failure to correct will be sent by certified mail or by personal service of the Officer. Any employer who receives a notification of failure to correct may notify the Area Director in writing that he intends to contest such notification or proposed additional penalty before the Review Commission. The same rules apply for other notice of contest, as discussed above.
The purpose for OSHA inspections is the abatement of violations of the Act. This following paragraphs set forth the procedures OSHA will use to ensure abatement. These procedures are tailored to the nature of the violation and the employer’s abatement actions. This applies to employers covered under the Act.
The abatement must be certified. Within ten calendar days after the abatement date, the employer must certify to OSHA that each cited violation has been abated, except where the Officer observes, within twenty-four hours after a violation is identified, that abatement has occurred and notes in the citation that abatement has occurred. The employer’s certification must include, in addition to other requirements discussed below, the date and method of each item abated and a statement that affected employees and their representatives have been informed of the abatement. The appendix of this section, not included in this article, contains a sample letter.
The abatement must be documented. The employer must submit to the Agency, along with the certification, documents demonstrating the abatement is complete. Documents may include, but are not limited to, evidence of the purchase or repair of equipment, photographic or video evidence of abatement, or other written records.
Some abatements require plans. The Agency may require an employer to submit an abatement plan for each cited violation when the time permitted for abatement is more than ninety calendar days. If an abatement plan is required, the citation must so indicate. The employer must submit an abatement plan for each cited violation within twenty-five calendar days from the final order date. The abatement plan must identify the violation and the steps to be taken to achieve abatement, including a schedule for completing abatement and how employees will be protected from exposure to the dangerous condition until the abatement is complete.
Abatement plans may require progress reports. An employer who is required to submit an abatement plan may also be required to submit periodic progress reports for each cited violation. The citation must indicate that periodic progress reports are required and the citation items for which they are required; the date on which an initial progress report must be submitted, which may be no sooner than thirty calendar days after submission of an abatement plan; whether additional progress reports are required; and the dates on which additional progress reports must be submitted. The appendix of this section, not included in this article, contains a Sample Progress Report Form.
Employees must be notified of abatement activities. The employer must post a copy of each document submitted to the Agency or a summary of the document near the place where the violation occurred, or where not practicable, where employee notices are regularly posted. The employer must inform employees and their representatives of their right to examine and copy all abatement documents submitted to the Agency. An employee or an employee representative must submit a request to examine and copy abatement documents within three working days of receiving notice that the documents have been submitted. The employer must comply with the request to examine and copy abatement documents within five working days of receiving the request.
The employer must ensure the notice to employees and employee representatives is provided at the same time or before the information is provided to the Agency and that abatement documents are not altered, defaced, or covered by other material and remain posted for three working days after submission to the Agency.
Certain information is required when transmitting abatement documents. The employer must include, in each submission required by this section, the following information: 1) the employer’s name and address; 2) the inspection number to which the submission relates; 3) the citation and item numbers to which the submission relates; 4) a statement that the information submitted is accurate; and 5) the signature of the employer or the employer’s authorized representative.
The date of postmark is the date of submission for mailed documents. For documents transmitted by other means, the date the Agency receives the document is the date of submission.
There are special tagging requirements for movable equipment. For serious, repeat, and willful violations involving movable equipment, the employer must attach a warning tag or a copy of the citation to the operating controls or to the cited component of equipment that is moved within the worksite or between worksites. Attaching a copy of the citation to the equipment is deemed by OSHA to meet the tagging requirement as well as the posting requirement (discussed above). The employer must use a warning tag that properly warns employees about the nature of the violation involving the equipment and identifies the location of the citation issued. The appendix of this section, not included in this article, contains a sample tag that employers may use to meet this requirement.
If the violation has not already been abated, a warning tag or copy of the citation must be attached to the equipment: for hand-held equipment, immediately after the employer receives the citation; or for non-hand-held equipment, prior to moving the equipment within or between worksites. The employer must assure that the tag or copy of the citation attached to movable equipment is not altered, defaced, or covered (hidden). For the construction industry, the equipment must be identified as unsafe by tagging or locking the controls to render them inoperable or shall be physically removed from its place of operation.
The employer must assure that the tag or copy of the citation attached to movable equipment remains attached until the violation has been abated and all abatement verification documents required by this regulation have been submitted to the Agency; the cited equipment has been permanently removed from service or is no longer within the employer’s control or the Commission issues a final order vacating the citation.
At the request of an affected employer, employee, or representative of employees, the Assistant Regional Director may hold an informal conference for the purpose of discussing any issues raised by an inspection, citation, notice of proposed penalty, or notice of intention to contest. The settlement of any issue at such conference shall be subject to the rules of procedure prescribed by the Review Commission. If the conference is requested by the employer, an affected employee or his representative shall be afforded an opportunity to participate, at the discretion of the Assistant Regional Director. If the conference is requested by an employee or representative of employees, the employer shall be afforded an opportunity to participate, at the discretion of the Assistant Regional Director. Any party may be represented by counsel at such conference. No such conference or request for such conference shall operate as a stay of any 15-working-day period for filing a notice of intention to contest.
Nothing within 29 CFR 1903 shall preempt the authority of any State to conduct inspections, to initiate enforcement proceedings or otherwise to implement the applicable provisions of State law with respect to State occupational safety and health standards. This means, if the feds have toasted your operations, the State is allowed a second shot at you.
This conversation in a nut: Any business with eleven or more employees must have an open door to federal and State bureaucrats. Therefore, it is imperative to have your business in order at all times because you do not know the day or the hour when they will fall upon you. Take a serious look at your operations and rid your business of unsafe operations and practices where possible. Otherwise, adjust your operations to assure the safest possible working environment for your employees.
For more information, feel free to contact Cougar Gulch Group, LLC using the contact form on the website (at the about page), or by calling Dean at 208-699-6877. The best safety reference manual on the market is located at http://cougargulch.com/workplace-safety-manual-by-cougar-gulch-group/. I hope this has been helpful for you and your business.
