Did you know?

• 1 out of 3 workers hurt on the job have been employed at that company less than a year.
• 70 percent of Cal/OSHA inspections are triggered by employee complaints.
• California businesses have to comply with more than 3,000 pages of additional regulations.
• Disabling workplace injuries have decreased since the SB 198 standard went into effect.
• On average, 18 fatal workplace accidents occur each day.
• 60 percent of all fall-related injuries occur from heights under 10 feet.

What can trigger an inspection?

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:

Imminent dangers – Imminent danger situations receive top priority. An imminent danger is a condition where there is a reasonable certainty that a danger exist that can be expected to cause death or serious physical harm immediately or before the danger can be eliminated.

Catastrophic accidents and fatalities – 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.

High-hazard industry inspections – Next in priority are programmed inspections aimed at specific high-hazard industries, workplaces, occupations, or 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. OSHA also may develop special emphasis programs that are local, regional, or national in scope, depending on the distribution of the workplaces involved. OSHA normally will conduct comprehensive safety inspections in manufacturing in those establishments with lost-workday injury rates at or above the Bureau of Labor Statistics’ (BLS) national rate for manufacturing currently is use by OSHA. States with their own occupational safety and health programs may use somewhat different systems to identify industries for inspections.

Employers who receive advance notice of an inspection must inform their employees’ representative or arrange for OSHA to do so. If an employer refuses to admit an OSHA compliance officer or if an employer attempts to interfere with the inspection, the Act permits appropriate legal action, such as obtaining a warrant to inspect.

Small business exemption

In low-risk industries, there is a small business exemption from programmed inspections only.

Businesses with 10 or fewer employees are exempted from programmed inspections, so long as they have an occupational injury lost workday rate lower than the national average, as published by the Bureau of Labor Statistics.

However, the small business/low-hazard industry exception applies only to programmed inspections, not to inspections triggered by safety complaints, accidents involving a fatality or the hospitalization of two or more employees, or reports of imminent dangers or health hazards. A lost workday rate higher than the national average can trigger an inspection for cause.

What to expect during an inspection

Inspections will be conducted by an OSHA compliance officer. Before the inspection he/she will become familiar with as many relevant facts as possible about the workplace, such as its inspection history, the nature of the business, and the particular standards that might apply.

Once the compliance officer arrives he/she will have an open conference and explain how the establishment was selected and what the likely scope of the inspection will be. The compliance officer will explain the purpose of the visit, the scope of the inspection, and the standards that apply. The compliance office will ask the employer to select an employer representative to accompany the compliance officer during the inspection.

After the conference, the compliance officer and accompany representatives proceed through the establishment to inspect work areas for hazards. Once the compliance officer and accompany representative have finished the walk through inspection, the compliance officer will conduct a closing conference with the employer, employees, and/or the employee representatives.

The compliance officer discusses with the employer all unsafe or unhealthful conditions observed during the inspection and indicates all apparent violations for which he or she may issue or recommend a citation and a proposed penalty. The compliance officer will not indicate any specific proposed penalties but will inform the employer of appeal rights.

After the compliance officer reports their findings, the Area Director determines whether he or she will issue citations and/or propose penalties.

What happens if the OSHA inspection turns up something that doesn't meet the government's standards?

• Citations
• Variances
• Penalties
• Defenses

The employer will receive citations and notices of proposed penalties by certified mail. The employer must post a copy of each citation at or near the place of violation occurred for 3 days or until the violation is abated, which ever is longer.

OSHA policy is to attempt to settle most cases, reserving litigation for the most significant cases. Only in the most egregious cases will OSHA interfere with the operation of your business by shutting it down. If you cannot correct the condition, you can apply for a variance.

You may apply for a temporary variance from a safety standard when compliance cannot be achieved by the standard's effective date because of unavailability of professional or technical personnel, materials, or equipment, or because necessary construction cannot be complete within the prescribed time.

A permanent variance may be granted if you can show that you can provide equivalent protection for your employees through alternative means.

The maximum penalty for a serious willful violation of OSHA is $5,000; the maximum penalty is $70,000. The minimum "base" penalty for a non-serious willful violation is $5,000. An employer who is convicted in a criminal proceeding of a willful violation of a standard that has resulted in the death of an employee may be fined up to $250,000 (or $500,000 if the employer is a corporation) or imprisoned up to 6 months, or both. However, this penalty amount can be seen as a "starting point." Proposed penalties may be reduced based upon the following factors.

The gravity or seriousness of the violation: how severe is the potential harm from employee exposure to the hazardous condition, and how probable is it that harm will in fact, result (the base penalty amount can range from $1,500 to $7,000)

Your good faith (such as cooperation in eliminating the problem); the penalty amount can be reduced by 15 or 25 percent in recognition of an employer's good faith.

The size of your business: the penalty amount can be reduced by as much as 60 percent for employers with 25 or fewer employees.

Your inability to pay the proposed penalties because of financial difficulties

Your history of violations: the base penalty amount can be reduced by 10 percent if the employer hasn't been cited by OSHA in the last three years.

Failure to correct a prior violation may bring a civil penalty of up to $7,000 for each day. Additional violations that may issue proposed citations and penalties are:

• Falsifying records, reports or applications. This can bring a criminal fine of $10,000 or up to 6 months in jail or both.
• Violating posting requirements may bring a civil penalty of $7,000.
• Assaulting a compliance officer or resisting, opposing, intimidating, or interfering with a compliance officer in the performance is a criminal offense and is subject to a fine of not mote than $5,000 and imprisonment for not more than 3 years.

• You may defend against a citation by showing that:
• You lacked knowledge of the violation.
• No employees were exposed to a hazard.
• The violation was caused by an unanticipated employee violation of your work rule.
• Compliance with the standard would have created a greater hazard to employees.
• Compliance with the standard was impossible or not feasible.

Defenses to a general duty violation

In order to establish that it was the employee's misconduct and not you who is responsible for a citation under the general duty clause, you must show that:

• The employee violated a well-enforced work rule.
• The worker's conduct could not be predicted.
• The conduct could not be prevented.
• The clause requires employers in all types of business to take OSHA seriously and to carefully maintain safety and health compliance.