Suppose you own the Marvelous Manufacturing Company ( “Marvelous”) and your best friend owns Classy Consulting Firm, Inc (“Classy”). One fine day you and your best friend arrive at your respective offices and each of you are greeted with an OSH-Administration inspector. (Assume for now both inspectors have an appropriate warrant or subpoena.) What’s up with that? Can an OSHA inspector really just show up like that? Even so, is that really such a likely scenario? Depending on the circumstances, quite possibly, yes. What kind of circumstances? Maybe, just maybe we can get some answers — after the jump…
We need first to learn a little bit about the types of OSHA inspections and when and how they might arise. Now, I don’t want to keep you in suspense so here are the different types of OSH-Administration inspections, in descending order of priority:
- Imminent Danger: Any condition that appears reasonably certain to be dangerous, that one can expect to cause death or serious physical injury immediately or before normal enforcement procedures can eliminate it will receive top priority and be subject to this type of inspection. The OSHA compliance officer will most often ask the employer to abate the condition and remove endangered employees from exposure to the condition in question. If the employer fails to do so, OSHA’s regional solicitor may apply to the appropriate United States District Court for an injunction prohibiting further work until the condition is abated. That possibility alone is often enough to get an employer’s attention. How might Marvelous or Classy find itself facing this type of inspection? Suppose Classy’s main office is housed in the same building as a chemical company, and noxious fumes have permeated the building. Some workers got sick yesterday and your friend wouldn’t close the office for the rest of the day, so an employee called OSHA. In that case, OSHA received a complaint and the complaint itself suggested imminent danger. Alternatively, a compliance officer might discover the condition in the course of another inspection. OSHA will generally try to conduct this inspection the same day it is notified, or the next day at the latest and notify the employer as soon as practicable. What if OSHA can’t conduct the inspection the same or next day? OSHA would then contact the employer, get as many details as possible and request the employer to notify and remove all affected employees from the danger and record all steps that have been taken to eliminate the danger and conduct the inspection or a follow-up inspection (See below) as soon as practicable. That is as much advance notice as an employer could inspect in this type of situation, and it would only occur if OSHA is unable to conduct an inspection the same or next day after receiving notification of or discovering the condition.
- Catastrophes and Fatal Accidents resulting in death or hospitalization of three or more employees. Employers must report such catastrophes to the OSH-Administration within 8 hours The OSH-Administration investigates the cause of the accident and whether OSH-Act standards were violated. As far as we know, nothing like that happened at either Marvelous or Classy’s workplaces, so they probably are not experiencing this type of inspection.
- Complaints and Referrals include employee complaints about unsafe or unhealthful working conditions or referrals from any other source about a workplace safety hazard. Marvelous, being in the manufacturing industry could certainly be vulnerable to risks of hazards or unhealthful conditions, particularly if its manufacturing involves some use of chemicals, and particularly if it is not as careful as it could be. What about Classy? Remember last week when we talked about the general duties clause (click here for review) ? Even if Classy’s business isn’t anything one would consider risky or hazardous, let’s say there was an issue with a violent employee. The OSH-Administration will often pursue such matters and take the position that it has jurisdiction under the General Duties Clause.
- Programmed Inspections: are aimed at specific high-hazard industries, workplaces, health substances or other industries identified in the OSH-Administration’s current inspection procedures. How does the OSH-Administration decide who gets treated to this type of visit? The OSH-Administration considers factors such as injury incidence rates, citation history, employee exposure to toxic substances or just plain old random selection. Of our two employers, Marvelous, being a manufacturing company, is more likely to be subject to this type of inspection, than Classy, a consulting firm. If Marvelous is truly surprised by the appearance of an OSH-Administration compliance officer, this might be the type of inspection that is about to happen.
- Follow-Up Inspections are for determining whether the employer addressed any conditions found and cited in previous inspections. If the employer has not corrected the violation(s) the employer may be subject to additional penalties for each day it fails to correct the violation(s). Since both Marvelous and Classy’s owners are surprised by the compliance officers’ appearances, they are probably not being treated to this type of inspection.
- Phone or Fax Investigations Sometimes, if the OSH-Administration determines that the alleged hazard or violation is “low-priority” it will, with the complainant’s consent, call the employer, discuss the safety and health concerns and follow-up with a fax containing more details. The employer will then have five working days to respond in writing, indicating problems found and corrective actions already taken or intended. If the OSH-Administration is satisfied with this response, then the inspection will end here without an on-site visit. Obviously Marvelous and Classy are not dealing with this type of inspection, which means that the issue at hand, while it may not be top priority, is not low-priority either.
Now, I know I did promise last week to talk about penalties, and I still plan to do that, but I thought it would be a good idea to first discuss inspection, so I changed my mind. (I’m told that’s my prerogative.) Anyway, I thought next week we could look, in generalities at what might happen during an OSH-Administration inspection–and then I’ll talk about penalties and related issues — really I will. Au revoir!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.
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