When OSHA Knocks: Part II

OSHA inspections are unannounced, but businesses can set themselves up for a favorable outcome by having a strategy in place before the inspector ever walks through the door. “When OSHA Knocks – Part I” provided an overview of the OSHA complaint process, along with tips on proactive steps employers should take to prepare for an on-site visit from an OSHA inspector. In Part II of this two-part series, we’ll cover what to do when the inspection is over, including tips on handling the Closing Conference, the types of possible OSHA citations, potential penalties, and employer options for contesting outcomes.

The Closing Conference

OSHA inspectors must conduct a closing conference following an inspection – immediately afterwards in the case of simple inspection, or for a major inspection, several weeks afterwards. Industrial hygiene inspection closing conferences generally are delayed because of the need to obtain test results.

The closing conference is an important opportunity to promote the company’s safety programs and its commitment to safety and health, as OSHA takes this factor in consideration when setting penalty amounts. Listen carefully and take notes on all specifics of alleged violations identified by the compliance officer. You may be asked to establish timelines for correcting alleged violations. Be cautious in setting dates and allow ample time. You should point out any obvious mistakes of fact or disputed issues with respect to the allegations, but don’t argue with the inspector.

For industrial hygiene inspections, ask for a copy of specific test results and findings. Citations may be issued for items not identified at closing, and at times, items under discussion will not be cited. OSHA has 6 months from the date of its first notice of the alleged violation to issue a citation.

OSHA Citations

Most citation items are for alleged violations of specific OSHA standards. However, the general duty clause, Section 5(a)(1), requires that every employer furnish to each employee “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.” The clause covers “serious” hazards for which no specific standard applies. Therefore, if a specific standard applies, a general duty citation is inappropriate. OSHA also has the authority to impose criminal penalties. The most common classifications are:

Other – Lowest OSHA classification, defined as not likely to cause serious injury. The maximum penalty is $7,000; however, most “other” penalties are either zero or a few hundred dollars.

Serious – Most common form of citation and classified as any condition that may cause serious physical harm; but this is broadly defined by OSHA. This essentially is the same definition as the “general duty” clause. The maximum penalty maximum is $7,000. Under OSHA penalty calculation guidelines, virtually every serious penalty will exceed $1,000.

Repeat – Any violation of the same standard within 3 years of a final order of a previous citation, or within 3 years of the final abatement date of the citation, whichever is later. The violations must be “substantially similar” to be considered to be “repeated.” The maximum penalty for a repeat violation is $70,000.

Willful – Not necessarily an intentional flaunting of regulations. This may mean an employer is found to knowingly commit non-compliance while understanding OSHA requirements. The maximum penalty for a willful violation is $70,000.

Penalties

OSHA will consider certain factors such as the gravity of the violation, the size of the business, the company’s history of violations, and the company’s good faith in its dealings with OSHA when calculating penalty amounts. Abatement dates for alleged violations either will be immediate (i.e., immediately upon receipt of the citation) or OSHA will specify a future date.

The Employer’s Options

An employer receiving notice of citations from OSHA has several available options.

Informal Conference: Employers may request an informal conference with the area director within 15 working days of the receipt of citation. Attorneys sometimes participate, but it is not necessary. If the company employees are represented by a union, the union will be invited by OSHA to participate. Advantages to an informal conference include the potential for penalty reduction, extension of abatement dates, and deletion and/or reclassification of citations. This process could also lead to the discovery of additional facts, helping the employer to ascertain whether to contest the citation, and the opportunity to create open communication with the area director.

OSHA expects the employer to make the presentation. Time is limited, so employers should focus only on items where there is a controversy. Point out facts in dispute or ask interpretive questions. Employers should conclude by stating exactly what form of relief they want.

The area director may propose amendment to citations and likely will ask for the employer to sign a preprinted settlement agreement. Employers can negotiate with OSHA and make counterproposals. Informal conference settlement agreements must be posted in the facility. Any settlement agreement should include a non-admission clause, to indicate that the employer does not admit to any violations or wrongdoing under the OSH Act.

Notice of Contest: If an informal settlement is not reached, employers must file a Notice of Contest within 15 working days from the date of receiving the citation, there are no exceptions to this requirement. No specific form exists; employers typically use a simple letter referencing the date and OSHA identification number of the citation and listing the specific items, penalties, and abatement dates being contested. When in doubt, employers should file a Notice of Contest, as it can be withdrawn at any time.

Employees have the right to participate in a contested OSHA case. The employer must post the Notice of Contest on a company bulletin board and must subsequently post a notice to employees advising them of their right to participate in the OSHA process.

Once an employer files a Notice of Contest, it is assigned to an Administrative Law Judge from the Occupational Safety and Health Review Commission. An attorney from the solicitor’s office of the U.S. Department of Labor will act as prosecutor. Companies will require legal representation to participate in this administrative proceeding.

The Solicitor will file a complaint, and the company’s legal counsel will file an answer. Eventually, the case will be set for hearing before the Administrative Law Judge. Many OSHA cases are settled prior to formal hearings, but the agreement must be approved by the Administrative Law Judge. Although infrequent, highly contested cases may be appealed to court.

Conclusion

While no employer possesses the ability to predict every potential trigger for an OSHA visit, with sufficient planning and preparation, as well as taking appropriate measures to manage the scope of the inspection, it’s possible to increase the odds of avoiding costly outcomes.

Karen Lazowski, Senior Consultant at OMNI Human Resource Management, provides comprehensive HR supports to select outsourcing clients, bringing over 20 years of experience in HR leadership, with an emphasis on start-ups and fast growth companies. Ms. Lazowski’s background includes 13 years as Executive Director, HR Services, at Applebee’s International and Director of Training & Organizational Development at Gentiva Health Services. Karen attended the Executive Leadership Program at Northwestern University’s Kellogg School of Management.

Jennifer Gross-Statler, Marketing & Communications Manager, comes to OMNI with 20-plus years’ experience as a nonprofit executive and brings valuable expertise in community and media relations, marketing and branding, project management, and strategic planning. She holds a Bachelor of Arts Degree in Government from The College of William and Mary in Virginia.