Pub. 2 Issue 1

15 SPRING 2014 14 After the OSHA Inspection BY SAM CELLY, CELLY SERVICES, INC. WE NOTE THAT WARRANTS ARE ISSUED UPON PROBABLE CAUSE AND ARE LIMITED IN SCOPE AS TO THE NATURE OF THE COMPLAINT AGAINST THE EMPLOYER.  OSHA Inspection — continued on page 16 U nder t he Occupat iona l Safety and Health Act of 1970 (the Act), the Occu- pational Safety and Health Administration (OSHA) is authorized to conduct workplace inspec- tions and investigations to determine whether employers are complying with standards issued by the agency. OSHA also enforces Section 5(a)(1) of the Act, known as the "General Duty Clause," which requires that every working man and woman must be provided with a safe and healthful workplace. OSHA does not have staff to go and inspect all employers so an inspection is usually a result of a complaint from an agency (fire department, hospital, paramedics), disgruntled employee, or a third party having knowledge of a violation. Inspections are always conducted without advance notice. There are, however, special circumstances under which OSHA may give notice to the employer, but such a notice will normally be less than 24 hours. These circumstances include the following: • Inspections due to imminent, dangerous situations that require correction as soon as possible; • Accident investigations where the employer has notified an agency of a fatality or catastrophe; • Inspections that must take place after regular business hours or that require special preparation; • Cases where notice is required to ensure that the employer and employee representative or other personnel will be present; • Cases where an inspection must be delayed for more than 5 working days when there is good cause; • Situations in which the OSHA Area Director determines that advance notice would produce a more thorough or effective inspection. Employers who receive advance notice of an inspection must inform their employees' representative or arrange for OSHA to do so. In certain circumstances, the employer may demand a search warrant. See Unreasonable Searches & Seizures Clause of the US Constitution (IV Amendment). In high stakes cases where fatality or an amputation is involved, the dealership should seek help of legal counsel, demand a search warrant and may have their lawyer present during the inspection process. Note 1: As a matter of policy, a 20 minute wait for the OSHA inspector prior to the inspection process is considered acceptable. Note 2: Search warrants for dealers have been an exception rather than the rule. We recommend that the warrant policy be decided ahead of time rather than bringing it up upon arrival of the inspector. Once knowledgeable consent has been given to the inspector, the warrant requirement is considered to have been waived by the employer. We note that warrants are issued upon probable cause and are limited in scope as to the nature of the complaint against the employer. INSPECTION PRIORITIES: Imminent Danger: Imminent danger situations receive top priority. An imminent danger is any condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately or before the danger can be eliminated through normal enforcement procedures. If a compliance officer finds an imminent danger situation, he or she will ask the employer to voluntarily abate the hazard and remove endangered employees from exposure. Should the employer fail to do this, OSHA, through the regional solicitor, may apply to the Federal District Court for an injunction prohibiting further work as long as unsafe conditions exist. Catastrophes and Fatal Accidents: Second priority goes to the investigation of fatalities and accidents resulting in a death or hospitalization of three or more employees. The employer must report such catastrophes to OSHA within 8 hours. OSHA investigates to determine the cause of these accidents and whether existing OSHA standards were violated. California assesses a penalty of $5000 for failure to report within the 8 hour time frame even if the accident happened on a weekend. Complaints and Referrals: Third priority goes to formal employee complaints of unsafe or unhealthful working conditions and to referrals from any source about a workplace hazard. The Act gives each employee the right to request an OSHA inspection when the employee believes he or she is in imminent danger from a hazard or when he or she thinks that there is a violation of an OSHA standard that threatens physical well-being. OSHA will maintain confidentiality if requested and inform the employee of any action it takes regarding complaints. In certain cases, it may issue a letter requiring employer to provide proof of compliance. These letters must be replied to OSHA expeditiously with support documents indicating compliance. Programmed Inspections: Next in priority are programmed inspections aimed at specific high-hazard industries, workplaces, occupations, health substances, or other industries identified in OSHA's current inspection procedures. OSHA selects industries for inspection on the basis of factors such as the injury incidence rates, previous citation history, employee exposure to toxic substances, or random selection. California requires that employers with Workers Compensation Experience Modification Factor (X-Mod) of 125% or higher receive programmed OSHA inspections. Follow-up Inspections: A follow-up inspection determines if the employer has corrected previously cited violations. If an employer has failed to abate a violation, the compliance officer informs the employer that he or she is subject to "Failure to Abate" alleged violations. This involves proposed additional daily penalties until the employer corrects the violation. WHAT DOES THE INSPECTION PROCESS INVOLVE? Inspectors' Credentials: When the OSHA compliance officer arrives at the establishment, he or she displays official credentials and asks to meet an appropriate employer representative. Employers should always ask to see the compliance officer's credentials. Employers may verify the OSHA federal or state compliance officer credentials by calling the nearest federal or state OSHA office. Compliance officers may not collect a penalty at the time of the inspection or promote the sale of a product or service at any time; anyone who attempts to do so is impersonating a government inspector and the employer should contact the FBI or local law enforcement officials immediately. Opening Conference: In the opening conference, the compliance officer explains how the establishment was selected and what the likely scope of the inspection will be. Take written notes during the opening conference and note the scope indicated by the inspector. The compliance officer will explain the purpose of the visit, the scope of the inspection, and the standards that apply. Wall to wall inspections may occur in the event of a fatality or serious accidents involving amputation or hospitalization! The compliance officer asks the employer to select an employer representative to accompany the compliance officer during the inspection. This person must stay with the inspector at all times until departure from the company premises. Do not allow the inspector to veer in the direction not agreed in the scope agreed upon in the opening conference! The compliance officer also gives an authorized employee representative the opportunity to attend the opening conference and accompany the compliance officer during the inspection. Walk-Through: After the opening conference, the compliance officer and accompanying representatives proceed through the establishment to inspect work areas for safety and health hazards. The compliance officer