Managing an OSHA Violation

On Dec. 29, 1970, President Richard M. Nixon signed into law the Williams-Steiger Occupational Safety and Health Act. As a result, OSHA was born. This Act requires that “every employer covered under the Act 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 to his employees” (29 CFR 1903.1). Failure to comply with this or any of the standards set forth by OSHA may result in a citation. Civil penalty structure ranges from approximately $13,000 per cited serious violation up to $125,000 for each willful or repeat violation. Criminal penalties could mean jail term.

Working in metal construction presents its share of potential oversights, incidents, events and accidents, which could involve OSHA. And, an OSHA inspection can occur anywhere, at any time and for a number of different reasons. Once an oversight, incident, event or accident occurs on your construction site, how do you manage an OSHA violation?

Before it Happens

Obviously, one of the most important aspects of site safety (and minimizing OSHA inspections) is preventing accidents before they happen. Construction contractors have a legal responsibility to implement safety rules and guidelines to provide a safe environment for their entire workforce and on-site visitors. Companies must ensure all safety rules are carefully crafted, written down, reviewed, approved by those in charge, understood by all and then complied with. Have regular safety meetings and ensure employees receive necessary safety training.

When they do happen, take all incidents where an employee is either injured or almost injured seriously. “If the incident results in a OSHA recordable injury, then the agency will require that the employer conduct an accident investigation and document the results on the OSHA 301 log,” says Gabe Sierra, president, Prometrix Consulting, Washington, D.C. “If the accident results in a serious reportable injury, which is defined as a fatality, amputation, loss of eye or admission into a hospital, then the employer must notify OSHA within eight hours in the case of a fatality and within 24 hours for the other types of serious injuries. Based on the type of injury, the employer’s enforcement history with OSHA and other factors, the agency will in effect triage those incidents to determine if they will conduct an on-site inspection or investigate the incident through a series of employer-OSHA communications. Of course, this comes with the caveat that some OSHA State Plan Programs, such as California-OSHA, have slightly different requirements where the Serious Injury Reporting must be done within eight hours. The employer will want to preserve the work site, including safety and security restrictions to the site of the accident, until the compliance officer(s) arrive.”

Construction site accidents are often complicated and require the assistance of an attorney to hold the right parties accountable and help you obtain full compensation. “Have the discussion internally and with counsel as to when to lawyer up on an inspection,” says Sam Iler, CHST, CSHM, principal, SafeCon Consulting Group Inc., Rancho San Diego, Calif. “Your protocol should address this as item number one. Obviously the more minor the issue, the less this becomes a factor. For serious issues, it is a very good idea to involve counsel, as these things can grow into large beasts, with large dollars involved.”

Preplanning for OSHA

In addition to trying to preventing accidents before they happen, every company should have an established protocol plan for inspections and designate a team to interact with OSHA. Practice your plan regularly. The inspection process should be managed so as to minimize operational disruptions. Job sites should be presented in the best possible light. Make sure employees know what to do if management is not on-site at the time of the inspection.

Only team members trained in this proper protocol should interact with the OSHA investigators during inspections. Within this team, a single safety-knowledgeable manager or designated safety officer should be designated to control and monitor the entire process and be OSHA’s main contact. They should know whom to call to obtain legal and risk management guidance from executive or in-house counsel or corporate support, and provide assistance to employees and families. This person should know how to cooperate with OSHA inspectors as legally required, but also take care not to divulge unnecessary information. By establishing policies and procedures in advance, and selecting a representative (and potential back-up representatives) in advance, you can ease the disruption of an OSHA inspection and minimize your company’s legal liability.

No OSHA inspection is minor, even those solicited by a disgruntled employee. “Have an inspection protocol ready and have every site manager trained on what it is and how to execute it,” concurs Iler. “Your response protocol should account for all of OSHA’s inspection protocols, along with your specific company parameters and best practices. The OSHA playbook for site inspections is readily available; everyone who will potentially deal with OSHA should know it and incorporate it into your response.”

Any paperwork requested in advance by OSHA should be handled promptly. Take the time to properly complete it. Rushing documents may lead to mistakes being made or details left out. Do not provide documentation to OSHA until your company’s safety experts have thoroughly reviewed it. The information should state your company’s position in the most positive light.

Positive First Impression

When OSHA inspectors arrive, your initial response will determine your success in avoiding and defending citations. OSHA’s first visit after an accident could be the most important during the investigation. First impressions by the compliance officer often dictate the course of the inspection and the extent of possible citations. Maintain a business-like manner. Hostile attempts to delay or obstruct the investigation will only antagonize the compliance officer.

Your receptionist should know whom to contact when OSHA arrives; get a supervisor or manager with one call as soon as possible to greet them. Verify the OSHA safety inspector’s credentials; look at his or her ID and business card.

“When OSHA comes on-site, until OSHA presents a warrant, you are voluntarily allowing OSHA to come on the site—Second Amendment Rights for illegal search and seizure are in play,” says Steve Yates, CHST, CEO and founder, Optimum Safety Management, Lisle, Ill. “Until you demand that OSHA gets a warrant, you actually don’t have to let them on your site. It’s never a good idea to demand that, you want to be cooperative.”

If advance notice is received, research and communicate why OSHA wants to inspect your workplace, i.e., complaint, accident, programmed, imminent danger, follow up. While no advance notice of inspections may be given, knowing the scope of the inspection makes things easier. OSHA’s compliance concerns should be discovered early in the process so that defenses to possible violations may be presented before citations are issued. Companies are entitled to legal representation in an OSHA inspection, and OSHA must give companies a reasonable opportunity to have its safety consultant or OSHA attorney be at the site before inspection commences.

Successful preplanning could result in a smoother inspection and create a positive impression on an inspector, possibly resulting in fewer violations. “In my dealings with state and federal OSHA Inspectors, I’ve noticed that they can see if your company has a safety culture or not pretty quickly,” says a fabricator/installer of architectural metal systems serving the Southern United States. “By putting your best foot forward and providing an effort to prevent hazards on your project really goes a long way with inspectors.

If they notice you have implemented a safety procedure and things appear organized and maintained, they tend to move on to the next area.

However, when it seems you don’t have safety as a value on the project, this can quickly be noticed also. When good faith effort is applied, it has an impact on a potential OSHA violation you would have otherwise possibly received.”

The Inspection

The OSHA compliance officer investigates and determines what OSHA requirements were violated by the employer. Violations cited do not necessarily have to be a direct cause of the accident and not directly involved in the accident. OSHA is empowered to expand the inspection scope and issue citation for other violations that may be in plain sight as the officer moves between the site entrance to the different site locations.

Walking through a construction site gives OSHA the chance to see the areas within the scope of the inspection and make observations, interview employees, take photos/videos, etc.

This is where the inspector will be very observant and focused on finding violations to cite. Control the inspection and have a company representative accompany the inspector at all times. Never leave him or her to have free and unlimited access to the job site.

OSHA will likely request safety records, safety meeting records and minutes, proper records that show all safety equipment has been recently inspected, and proof that all employees have received proper safety training.

This inspection team should take notes on what happens during the inspection as well as take photographs to duplicate the pictures (side-by-side of areas photographed or videotaped) taken by the compliance officer at the same time. OSHA’s mission is to gather evidence that violations are occurring or have occurred, so your in-house inspection team should collect the same information to correct the hazard or prepare a defense to any citations that may be issued.

“The first things that a compliance officer will look at are the relevant written programs, policies or procedures, as well as the training methods, content and records of completion for the exposed employee(s),” Sierra says. “These are often considered to the proverbial low-hanging fruit for a compliance officer to cite. Also, employers should understand that OSHA’s training requirements mandate that the training be effective. The term effective for OSHA has a specific meaning that sometimes goes under appreciated. For training to be effective, it must be delivered in a manner that is understood, retained and implementable by the employees. This is an area, for example, where language barriers may play a role in making the safety training in-effective. Or the delivery of the training material is poor. Compliance officers are savvy in spotting instances where the training is provided by the employer as sort of a check-the-box exercise.”

Iler suggests that in terms of information exchange, “Make it easy for the compliance officer to see what you are doing right. If you don’t have something readily available and can have it sent while they are on-site, do it. You can provide it later, but that means you will eventually come back to the top of that list.”

Avoid reenactment of accidents and simply permit the inspector to review the construction operations. OSHA inspectors are allowed to interview hourly employees in a private setting without any supervisors or management participating in those discussions. Employees have the right to not have questioning conducted in private, if they so choose. The unintended consequence, however, is that this may trigger some doubts in the inspector’s mind as to what is motivating the employee to make such a stand. The employer should not influence the employee either way. Furthermore, the employer must not reprimand the employee in any way regardless of the interviews. Employees are protected by law to be able to speak openly, freely and without fear of reprisal with OSHA. The evidence gathered for later analysis gives OSHA the proof of violations; this is especially important if an issued citation is appealed.

Upon completion of the inspection, a closing conference will be held, most often on the same day of the inspection. Take thorough notes at the closing conference while the inspector most likely reviews his or her findings. Any observed violations of OSHA safety standards should be discussed. Learn what improvements are needed, but also what is being done right.

After the Inspection

After the initial site inspection, the OSHA inspector may complete a citation or assess penalties. This may take anywhere from a few days to a few months. The inspector will review the details to ensure citations are based on facts. Even if you agree with the proposed citations, avoid admitting violations or recognizing hazards.