Frequently Asked Questions

By Eric J. Conn, Head of EBG’s national OSHA Practice Group

We have written extensively about problems with OSHA’s controversial Severe Violator Enforcement Program (SVEP) here on the OSHA Law Update blog.  If the leadership team in the national office of OSHA invited us to sit down with them to ask questions on behalf of Industry about some of these problems with the SVEP, here is what we would ask them:

  1. As one would expect for a program designed for recidivists, the punitive elements of the SVEP are significant, including: (a) inflammatory public press releases branding the employer as a severe violator; (b) adding the employer’s name to a public log of Severe Violators; (c) mandatory follow-up inspections at the cited facilities; (d) conducting numerous inspections (up to ten) at sister facilities within the same corporate enterprise; and (e) demanding enhanced terms in settlements (such as corporate-wide abatement, requiring the employer to hire third party auditors to report findings to OSHA, etc.).  However, with the consequences of “qualifying” into SVEP being so, well, severe, how does OSHA justify the fact that the Agency qualifies employers into SVEP before final disposition of the underlying citations?  In other words, how is it lawful, Constitutional, or just plain fair that employers should face these harsh punishments before OSHA has proven that the employer violated the law at all, let alone in the egregious ways that qualify them for SVEP?  For more details about this concern, check out our article regarding the legal and constitutional implications of this premature qualification into SVEP.
  2. For more than two years after OSHA launched the SVEP, the Directive for the Program did not include any explanation for how employers could get out once they officially qualified.  When OSHA’s leadership team was asked about this at conferences and meetings, they similarly could not or would not offer any guidance.  The SVEP was quite literally a roach motel; you could check in, but you could never leave.  After much clamoring from industry representatives, earlier this year, OSHA finally publicized a set of so-called SVEP exit criteria.  In short, SVEP employers may get out of the Program if they: (a) pay all the final civil penalties; (b) address all of the abatement required by the citations or settlement; (c) address any other terms of the settlement; (d) make it three full calendar years after final disposition of the citations without receiving any related Serious violations; and (e) even if all of the above is accomplished, the employer may be released from SVEP by the undefined discretion of the OSHA Regional Administrator in the employer’s area.  Check out our earlier post on the OSHA Law Update blog about the SVEP exit criteria.  As relieved as Industry was to see OSHA announce some exit criteria for getting out of SVEP, the specific exit criteria identified by OSHA raise many questions about fairness and reasonableness.  For example, the clock for the three-year “probation/exit period” does not start until “final disposition” of the underlying citations, as opposed to when OSHA qualifies employers into the Program (i.e., immediately upon issuance of the citations).  My questions for OSHA about the SVEP exit criteria would be, how does OSHA reconcile the timing for exit against the timing for qualification?  Why does the start of the exit clock wait for final disposition, but OSHA does not wait for final disposition to dump employers into the Program to begin with?  Also, what criteria or factors will the Regional Administrators consider when exercising their undefined discretion in deciding whether to let employers out of SVEP?
  3. Also relevant to OSHA’s SVEP exit criteria, if an employer has a good faith disagreement with OSHA about the basis for the qualifying citation(s), and decides to contest the citations through the formal process provided by the OSH Act, that process can take several years.  Therefore, if the employer contests the citations, and that contest takes two years, and at the end of that two year contest process, the citation package is cut dramatically by an ALJ, but there still remains one SVEP-qualifying citation on the books, that employer’s exit/probation period will be at least 5 years instead of 3.  Hasn’t the employer been punished for exercising his right to contest citations?  Put another way, doesn’t three-years from final disposition exit criteria discourage employers from exercising their right to challenge OSHA’s citations? Continue Reading 5 Questions We Would Ask OSHA about the Severe Violator Enforcement Program (SVEP)

I was recently asked an interesting question by an industry contact:

“Employers often are told to know and exercise their rights during an OSHA inspection.  What exactly are employers’ rights during an OSHA inspection?”

While it may not feel like it during an inspection, employers have many rights before, during, and after OSHA inspections.

Before an inspection even begins, employers have a right under the Fourth Amendment to the U.S. Constitution to be free in their workplaces, just as they are in their homes, from unreasonable searches and seizures, which includes inspections by OSHA.  What that means is, OSHA may not inspect a workplace unless the Agency has administrative probable cause (a lower burden than criminal probable cause) to believe that a violative condition exists within.  Accordingly, employers have a right to demand an inspection warrant that establishes OSHA’s probable cause to inspect.  We rarely advise clients to demand an inspection warrant; rather we try to negotiate with the Agency over a reasonable scope of the inspection, and with such an agreement, waive the warrant right and consent to the inspection.

Another right employers should consider asserting with regard to OSHA inspections is the right to exclude non-employee third parties (such as a union representative at a non-union workplace) from participating in the inspection process. OSHA recently issued a formal Interpretation Letter of the regulation covering who may participate in OSHA walk-around inspection (29 C.F.R. 1903.8(c) – Representatives of Employers and Employees).  Specifically, OSHA expressed its belief that employees at a non-union worksite may authorize a third party affiliated with a union or community organization to act as the employees’ representative during an inspection.  Notwithstanding OSHA’s interpretation letter, the plain language of the standard makes it clear that such involvement by a third party union representative is not permitted under the law, and employers may exercise their rights to exclude third parties from the inspection by demanding and challenging a warrant under those circumstances.  If confronted with such a situation, employers should consult with legal counsel before allowing any non-employee third party to participate.  One approach would be to demand and challenge an inspection warrant.  If the non-employee is permitted on the premises, employers should be explicit about who bears responsibility for any injury to that person, who is responsible for any PPE, determine whether that person is trained on any hazards that may be present or has any necessary security clearances for sensitive activities that may be in view, and how to protect any proprietary processes from being revealed.  Here is an article we wrote on this issue when the interpretation letter was released.

Also before inspections begin, employers have the right to an opening conference.  In my opinion, this is the most important stage of the inspection because it is the time when employers can:

  1. Negotiate to narrow the scope of the inspection;
  2. Can ask questions about the purpose of and probable cause justifying the inspection; and
  3. Try to establish ground rules with OSHA about how the inspection may proceed, from the collection of documents (through written requests only), to interviews (scheduled in advance), and physical access to the facility (only with a management escort).

If the inspection was initiated by an employee or former employee complaint, employers also have a right to access a copy of the complaint before consenting to the inspection.

Once an OSHA inspection begins, employers also have many rights, including a right to accompany the compliance officer at all times during the walkaround, and to take side-by-side photographs or other physical evidence that OSHA takes during the inspection.  Another important right relates to management interviews.  Interview statements by management representatives bind the company, and since the OSH Act gives employers the right to be present when binding statements are taken, employers therefore have a right to be present and participate in interviews of management witnesses, regardless of whether the management witness wants the representative there. Continue Reading What Are Employers’ Rights During OSHA Inspections?

By Eric J. Conn, Head of the OSHA Practice Group at Epstein Becker Green

An industry contact recently asked me what five issues I expected OSHA would be focusing its enforcement efforts on for the balance of this year.  Here was my response:

1.  Emergency Exits & Exit Routes – A couple of months ago, OSHA issued an enforcement memorandum directing inspectors to scrutinize whether employers were providing and maintaining adequate means of emergency exit; i.e., unlocked, unobstructed, and clearly marked exit doors and exit routes in compliance with 29 C.F.R. 1910.36.  We just wrote a blog post about this Exit initiative on the OSHA Law Update blog.   The directive applies to all industries and all workplaces, so I expect that will be one item OSHA looks at carefully in all inspections for at least the rest of the calendar year.

2.  Hazard Communication – Employers will be hearing a lot about OSHA’s Hazard Communication standard over the next few months.  As we reported here, OSHA revised its Hazard Communication Standard to align with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS), and published the new Final Rule last year.  Two significant changes contained in the revised standard require chemical manufacturers and users to implement new labeling elements and create and maintain Safety Data Sheets (SDSs) that follow a new standardized format.  A portion of the new requirements kicks in this winter.  Specifically, by December 1, 2013, employers must have completed training on the new label elements and the new SDS format.  Accordingly, I expect OSHA to spend some time addressing these issues in enforcement inspections to help spread the word that the new requirements have arrived.  Here is an article we wrote about the new HazCom Standard.

3.  LO/TO & Machine Guarding – OSHA’s regulations addressing amputation hazards; i.e., Lockout/Tagout and Machine Guarding, both rank high on the list of most frequently cited OSHA standards every year.  As a result, OSHA currently has in place a special emphasis program focusing inspection resources on these hazards.  Specifically, OSHA is in the midst of an Amputations National Emphasis Program, which targets compliance with the LO/TO and machine guarding standards.  That NEP has led to some significant enforcement actions, and I anticipate seeing OSHA continue to look out for those types of issues during inspections the balance of the year.

4. Fall Protection – Just like with amputation hazards, fall hazards continue to rank among the leading causes of serious injuries and fatalities in both general industry and construction, and OSHA’s fall protection standards continue to rank among the most frequently cited standards year after year.  Accordingly, OSHA almost always maintains Special Emphasis Programs targeting fall hazards.    Nine of OSHA’s ten Regions have active local or regional emphasis programs focusing inspection resources on fall hazards in either or both general industry and construction.

5.  Compliance with the Grain Standard — For the past few years, OSHA has been actively inspecting grain handling facilities in all major U.S. grain states under local emphasis programs.  While the LEPs continue to set a pretty high target for the number of grain elevator inspections annually, many regions have held back on inspections during the spring in summer, and plan to catch up on the annual target during the fall and winter (i.e., harvest season).  The reason being, there is generally not much activity at most grain elevators that OSHA is interested in during the spring and summer months.  Since employees are more often engaged in those work activities covered by the Grain LEPs during harvest season, such as entering bins, performing preventive maintenance, loading railcars, etc., the frequency of inspections at grain handling facilities will be particularly high for the rest of this year.

Join Eric J. Conn and Amanda Strainis-Walker, attorneys from Epstein Becker & Green’s national OSHA Practice Group, for two in-person OSHA briefings on Tuesday, September 24th in Philadelphia, PA and Wednesday, September 25th in Pittsburgh, PA.

The presentations will focus on why it’s important to and how best to prepare for and manage OSHA inspections.  Here is the invitation:

To register for the 9/24 Philadelphia Briefing, click here.
To register for the 9/25 Pittsburgh Briefing, click here.

 

If you have questions about these events, please contact Eric J. Conn, Head of the OSHA Practice Group.

In March of last year, we answered five frequently asked questions related to OSHA inspections.  After receiving much positive feedback about that post and a few new OSHA inspection-related questions, we decided to launch a regular series on the OSHA Law Update blog with posts dedicated to OSHA Frequently Asked Questions.  For each post in this OSHA FAQ Series, we include both a text response and a video/webinar with slides and audio.

In last month’s OSHA FAQ #4 we talked about the importance of and strategies for establishing an internal OSHA Inspection Team.  In this month’s OSHA FAQ #5 we review the physical tools, materials and resources that the OSHA Inspection Team should have handy to manage an OSHA inspection.

QUESTION:    I have now assembled an internal OSHA Inspection Team, so what materials, resources, and equipment should we set aside for the team in order to effectively manage an inspection by OSHA?

OSHA FAQ 5Click here to view a video response (WMV video format). 

As we discussed last month, OSHA collects nearly all of its “Discovery” during the inspection stage, not during the subsequent Contest/Litigation phase, and OSHA uses that Discovery to determine whether violations exist and uses it as evidence to support citations that it issues in later litigation.  Accordingly, it is critical for employers to manage the flow of information to OSHA during the inspection.

To accomplish that goal, we recommended last month that employers establish an internal OSHA Inspection Team, and train the Inspection Team members in advance of a visit by OSHA.  As important as knowing who will play important roles during an inspection by OSHA, employers should also think in advance about what tools the team members will need in order to best manage the inspection.

Although the resources necessary for each inspection will vary based on your industry, the nature of your facility, the materials you work with or produce, and the reason OSHA is conducting the inspection, the following list identifies the basic inspection tools that every employer should maintain for its inspection teams:

  • Contact List (to notify and coordinate with senior management, legal department or outside OSHA counsel contacts, the rest of the inspection team members and back-ups, and other personnel who have access to information for the inspection);
  • Camera/Video Camera (to collect take side-by-side images taken by the CSHO);
  • Document & Interview Log (to track OSHA’s document and interview requests, and your responses to OSHA);

  • Bates and Business Confidential Labels (to mark each page of each document produced to OSHA with a unique identifying number and to identify those sensitive business records that OSHA should withhold from a FOIA request);
  • Tools for Physical Sampling (to take matching samples taken by the CSHO, including dust, chemicals, noise readings, air readings, etc.);
  • OSHA’s Field Operations Manual (to consult with to understand why the CSHO is doing certain things, and to reference if the CSHO is doing something contrary to the manual)

You should supplement this list based on your specific needs.  For example, if your facility creates or works with dust particles, be prepared to take dust samples alongside the CSHO.  The sampler may need viles and/or bags to secure the samples.  In the case of a facility that contains loud machinery, the CSHO may perform noise monitoring to evaluate compliance with OSHA’s hearing protection standards.  A member of the inspection team should have access to a dosimeter (or be prepared to coordinate with a third party industrial hygienist) to take side-by-side readings with OSHA’s industrial hygienist.

OSHA’s compliance directives and special emphasis program directives related to your operations are also a good resource to have handy, so your team members can review the types of physical evidence OSHA may pursue during an inspection at your facility, and therefore, the types of physical tools you may need to gather your own set of that evidence.

In sum, equip your Inspection Team with the tools needed to gather the evidence likely to be gathered by OSHA during an inspection.

Back in March, we answered five frequently asked questions related to OSHA inspections.  We received so much positive feedback from that post, and so many requests to address additional OSHA questions that we decided to launch a monthly series here on the OSHA Law Update blog with posts dedicated to your OSHA Frequently Asked Questions.  For each of the posts in this OSHA FAQ Series, we have included both a text response and a video/webinar response with slides and audio.

In this post, OSHA FAQ #4, we address a question regarding establishing an OSHA Inspection Team, including what roles should be designated and how to prepare the team for an unexpected visit from OSHA.

QUESTION:   To best prepare for an unannounced OSHA Inspection, my Company is assembling an “Inspection Team” to be ready to manage a visit from OSHA.  What are the different roles that we should include on the Team, and what are the responsibilities for which we should train the various team members?

OSHA FAQ 4Click here to view a video response (WMV video format). 

OSHA conducts approximately 95% of its “Discovery” during the inspection phase (not the subsequent Contest stage), and uses the Discovery it obtains during inspections to determine whether violations are present and can be supported in potential citations.  Accordingly, it is critical for employers to be prepared to manage the flow of information to OSHA during an inspection.

Accordingly, one of the most important steps every employer should take to prepare for an OSHA Inspection, and to ensure the inspection process goes smoothly once an OSHA compliance safety and health officer (CSHO) does arrive, is to designate certain personnel to fill specific roles on an Inspection Team.  This will help you respond quickly when OSHA starts an inspection, have better controls in place to manage the flow of information during the inspection, such as better:

  • Control over the entire scope of the inspection;
  • Organization and care in the document production process;
  • Preparation and representation of employees and managers during inspection interviews;
  • Ability to capture duplicate evidence; i.e., side-by-side photographs, samples, and other physical evidence, and a complete copy set of documents produced to OSHA; and
  • Control over what parts of your facility the CSHO observes during his walkaround inspection.

To accomplish these goals, we recommend that you assign, in advance of any inspection, the following Inspection Team roles, and train the assigned team members in all of the related employers’, employees’, and OSHA’s rights, as well as inspection strategies, related to their assigned roles on the Inspection Team:

1.  Principal Spokesperson.

  • The spokesperson is the team leader and point person for OSHA during the inspection.
  • It is the Principal Spokesperson to manage the overall inspection, from communicating decisions to OSHA about consenting to the inspection or demanding a warrant, to negotiating the scope of the inspection, and laying the ground rules for document production and interviews.
  • This role is generally covered by your outside OSHA counsel, Corporate Safety Director, or another Senior Management representative.  The inspection should not be permitted to begin until the Principal Spokesperson is on-site (see our earlier post regarding delaying the start of an OSHA inspection to await your inspection representative).

2.  Document Coordinator.

  • Managing the document production during the inspection is perhaps the most important role.
  • The Document Coordinator should manage the entire document production process, including: (a) being designated as the sole authorized person to accept a document request (always in writing) from OSHA; (b) coordinating with company and third party representatives to gather responsive documents; (c) reviewing documents for responsiveness, and to determine whether they contain privileged or business confidential information; (d) processing the documents with Bates and Business Confidential labels; (e) preparing duplicate copies for the Company to keep; (f) producing the documents to OSHA; and (g) tracking the status of all document requests on a Document Control Log. Continue Reading OSHA FAQ Series (FAQ #4: Establishing an OSHA Inspection Team)

Back in March, we answered five frequently asked questions related to OSHA inspections.  We received so much positive feedback from that post, and so many requests to address additional OSHA questions that we decided to launch a monthly series here on the OSHA Law Update Blog for OSHA FAQ posts.  For each of the posts in this OSHA FAQ Series, we have included both a textual response and a video response with slides and audio.

In this post, OSHA FAQ #3, we address a very common question regarding whether (and for how long) employers can ask OSHA to delay the start of an inspection to allow a specific employer representative, such as the company’s outside OSHA counsel or corporate safety director, to arrive at the site in order to participate in the inspection.

QUESTION:  If OSHA arrives at one of our active construction sites to conduct an inspection under the Falls in Construction Special Emphasis Program, and our policy requires our Director of Crews to represent the Company at all times when OSHA is on-site, but he is located at our Headquarters (a six-hour drive from the site).  Can we ask OSHA to wait until the Director of Crews arrives before starting the inspection?

OSHA FAQ 3Click here to view a video response (WMV video format). 

Employers can request that the CSHO return at a later time or wait a “reasonable” amount of time to allow the Company’s chosen inspection representative to arrive at the site of the inspection.  The OSH Act grants employers the right to be represented during an OSHA inspection, the right to accompany a CSHO during the on-site inspection, and the right to participate in management employee interviews.  It is the employers right also to designate whomever it wants to serve in that representative capacity during the inspection.

OSHA will wait a reasonable amount of time for that representative to arrive, and acknowledges that duty in its Field Operations Manual.  The OSHA Field Operations Manual, however, states that a delay of one hour is normally considered to be reasonable:

“The inspection shall not be delayed unreasonably to await the arrival of the employer representative.  This delay should normally not exceed one hourOn occasions when the CSHO is waiting for the employer representative, the workforce may begin to leave the jobsite.  In this situation the CSHO should contact the Area Director or designee for guidance.

Notwithstanding that language in the Field Operations Manual, reasonable is reasonable, and if the employer representative is more than one hour away, and the requested delay is not for any nefarious reason (i.e., destroying evidence of violative conditions), then a longer delay is reasonable.

Regardless of whether OSHA believes it reasonable to wait six-hours, or delay until the following day (or for however long it actually takes for the employer’s chosen representative to arrive on site), the employer can insist that OSHA wait, and if OSHA does not agree, the employer can always refuse to consent to the inspection, and demand that OSHA obtain an inspection warrant before beginning the inspection, which process will ordinarily take at least a day or two.

There are, however, two scenarios when OSHA may try to force itself on to the employer’s property without waiting for the employer representative or first obtaining a warrant:

  1. Exigent Circumstances – the compliance officer has reason to believe that critical evidence of a workplace violation is being destroyed or removed from the workplace, and his immediate access to the evidence is necessary.
  2. Imminent Danger – the compliance officer has reasonable grounds to believe there is a condition that exists at the workplace that presents an imminent risk of death or serious harm to an employee.

Back in March of this year, we answered five frequently asked questions related to OSHA inspections.  We received positive feedback from that post along with several requests to address new OSHA-related questions.  Accordingly, we started a new, monthly OSHA FAQ series last month, with the first FAQ post addressing potential triggers for OSHA inspections.

In this post, the second in the regular OSHA FAQ series, we focus on two common defenses to OSHA citations – “Lack of Employer Knowledge” and “Unpreventable Employee Misconduct,” and again, we have provided both a text version of the answer, and a webinar version with slides and audio.

QUESTION: OSHA cited my company because an employee was found not wearing certain personal protective equipment (PPE).  There is no dispute the employee was not wearing the PPE, or whether the PPE was required, but the employee was violating our strict PPE policy.  Do we have any defenses?

Click here to view a video response (WMV video format).

Depending on the circumstances, you may have several defenses, including: (1) lack of employer knowledge; and (2) unpreventable (or unforeseeable) employee misconduct.

Employer Knowledge

To establish that any violation of a specific standard (whether it is characterized as Willful or Other than Serious), OSHA bears the burden of proving by a preponderance of evidence:

  1. The applicability of the cited standard;
  2. The employer failed to comply with the cited standard;
  3. Employees had access or exposure to the violative condition; and
  4. The cited employer had knowledge of the violative condition.

The final requirement, that the employer had knowledge of the condition for which it was cited, can be established by OSHA proving either that: (1) the employer had actual, direct knowledge of the violation; or (2) with the exercise of reasonable diligence, the employer should have known of the violative condition.

Employee Misconduct

The “Employer knowledge” defense is closely related to the “Employee Misconduct” defense, but there are two key differences between them.  First, whereas it is OSHA’s burden to prove that the employer had knowledge of a violation, the employee misconduct defense is an affirmative defense, which means the employer bears the burden of proof.  Second, employer knowledge is a single element defense — the employer either had knowledge (actual or constructive knowledge) or it did not.  The employee misconduct defense has several elements, all of which much apply for the employer to prevail.

As set forth in OSHA’s Field Operations Manual, to prevail on the affirmative defense of “Unpreventable Employee Misconduct – Isolated Incident,” the employer must show that it:

  1. Established a work rule adequate to prevent the violation;
  2. Effectively communicated the rule to employees;
  3. Established methods for discovering violations of work rules, and yet did not know about an isolated violation of the work rules; and
  4. Established effective enforcement of the rule when violations are discovered.

In the case presented in this FAQ, the employer would have sufficient evidence to prove the Employee Misconduct defense if you it can demonstrate that:

  1. Employer has an established PPE policy that addresses the type of PPE for which the employer was cited;
  2. Affected employees (including the employee who was found not wearing the PPE) have been trained on the PPE policy;
  3. Employer conducts regular audits of the workplace to ensure employees are following the PPE policy; and
  4. Employees are disciplined when they are found to be in violation of the PPE policy (or other safety rules).

Documentation is the key to all of these elements. Indeed, I tell my clients all the time, “in OSHA’s mind, if it’s not documented, it didn’t happen.”

In most cases employers are able to produce a procedure and some training records, but often struggle to present written evidence that they are actively supervising their employees to ensure compliance with safety policies, and struggle even more to demonstrate that they enforce violations through discipline.  As such, an employer’s policies should be written and readily accessible.  Employers should also maintain written records of training, including dated sign-in sheets, training agendas, and test/quizzes (invariably, when employees are interviewed by OSHA, they forget all the training they have received), document audits and audit findings, and issue written discipline (even document it when  you issue a verbal warning).

One final note, if the employee in this scenario is a management representative, there is a corresponding “Unpreventable Supervisory Misconduct” defense, but the threshold employers must meet to prevail on this defense is much higher, because the knowledge of supervisory employees is generally imputed to the employer.

Click here to view a video response (WMV video format).

Back in March we answered five frequently asked questions related to OSHA inspections.  We received a lot of positive feedback about that post and several requests to address additional questions.  Following up on that feedback, we will be adding additional FAQ posts as a regular feature of the OSHA Law Update Blog.  In addition to the text responses to the FAQs, we will also provide a webinar link with audio and slides to provide more in depth responses to each question.  Click on the image of the slide below to watch and listen to the first webinar response.

In this post we address a common question regarding the triggering events for an OSHA inspection.  Specifically, our reader asked:

QUESTION: “My company recently had an OSHA inspection without any serious findings.  What would put my company at risk for another inspection here, or at one of our facilities?”

Click here to view a video response (WMV video format).

The minute the file is closed on one OSHA inspection, there are several circumstances that can trigger a “programmed” or “unprogrammed” visit from an OSHA compliance officer at either the same facility or a related facility within the same company.

OSHA’s Field Operations Manual (at p. 9-3) lists ten criteria that will trigger a “unprogrammed” OSHA inspection.  These criteria include:

  • A valid formal employee complaint;
  • A signed, written complaint of an employee alleging a serious safety violation;
  • Information that a permanently disabling injury or illness has occurred and the hazard relating to that incident still exists;
  • Information alleging an imminent danger;
  • Information relating to an alleged hazard covered by a local, regional or national emphasis program;
  • An employer inquiry is not adequately addressed;
  • The employer has a history of violations or is part of the Enhanced Enforcement Program;
  • A whistleblower has alleged discrimination for complaining about workplace safety issues;
  • A minor issue is raised when an inspection has already been scheduled or begun for another reason; and
  • Information gives reasonable grounds to believe a minor (under 18) is exposed to hazardous workplace conditions.

In addition to these unprogrammed inspections, there are several avenues through which a “programmed” inspection can begin.  Programmed inspections are those inspections that are part of a “neutral inspection program” in which employers in certain industries are randomly targeted for inspections.  If OSHA has targeted an industry for additional oversight, then an individual employer in that industry is more likely to be selected any given year unless they have been removed from the selection list.  Under certain circumstances, employers may temporarily or permanently removed from the list for a programmed inspection if they meet the following criteria (set forth in OSHA Directive CPL 02-00-025 – Scheduling System for Programmed Inspections):

  • “Safety inspection–Any comprehensive programmed or focused safety inspection or a substantially complete unprogrammed safety inspection conducted within the current or previous five (5) fiscal years.”
  • “Health inspection–A substantially complete or focused health inspection was conducted within the current or previous five (5) fiscal years with no serious violations cited; or, where serious violations were cited, an acceptable abatement letter or a follow-up inspection has documented ‘good faith’ efforts to abate all serious hazards.”

Additionally, Section 3-14 of the Field Operations Manual states that “employers who participate in selected voluntary compliance programs may be exempted from programmed inspections.”  These compliance programs include OSHA On-Site Consultation Visits, the Safety and Health Achievement Recognition Program, and the Voluntary Protection Program.

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Here is a link to our responses to other OSHA FAQ posts.  Also, check out our OSHA Inspection Checklist for more helpful tips and advice about preparing for and managing an OSHA Inspection.

Got OSHA-Related Questions?  We Have the Answers!

Coming soon to the OSHA Law Update blog is a regular series of “OSHA Inspection Frequently Asked Questions” posts.  This series is in direct response to the many inquiries we received from our popular post last year entitled: Managing an OSHA Inspection: Answers to 5 Frequently Asked Questions.

The OSHA Inspection FAQ series will address inspection issues from the procedural to the substantive legal and strategic.  We will also look to our readers to send in questions that we can tee-up for responses.  Watch for the inaugural FAQ later this month.