For the last 18 months, OSHA understandably focused its attention on COVID-19. Although COVID-19 variants remain a health concern, many of us expect OSHA will now return focus to traditional workplace safety and health enforcement. Why do we have this expectation? The Department of Labor requested a 12% funding increase for OSHA in its first budget request under President Biden. OSHA had 752 inspectors in FY 2019. That number increased to 790 in FY 2020. The Biden administration is proposing an 11.3% increase in federal OSHA enforcement, including hiring 155 new OSHA investigators.
OSHA conducted a total of 33,390 inspections in 2019. In the first two months of 2022, OSHA has conducted a total of 9,615 inspections. Will your business receive a visit?
How does OSHA select work sites for inspection? Primary Inspection Priorities.
Imminent Danger and Fatality / Catastrophe
An Imminent danger exists if a workplace condition threatens death or serious harm, AND it is reasonably likely that a serious accident or exposure to a toxic or hazardous material could occur immediately or before abatement would otherwise be implemented.
A Fatality is a death resulting from a work-related incident or exposure while a Catastrophe is the hospitalization of three or more employees resulting from a work-related incident or exposure.
An employer should expect injuries and exposures falling into these two priorities will result in immediate inspections.
Complaints / Referrals
Complaints typically are made by employees or employee representatives such as unions.
Referrals are notifications of possible unsafe conditions by other federal agencies, or state or local agencies.
Some Complaints and Referrals may involve Imminent Danger and Fatalities / Catastrophes. If so, the employer can expect an on-site inspection.
Injuries and exposures that do not pose a threat of Imminent Danger or result in a Fatality or Catastrophe might prompt an on-site inspection. OSHA will examine among other facts: (1) is the accident or exposure immediately “reportable,” i.e., result in the loss of a limb or eye, or the hospitalization of an employee; (2) does the business have a history of the same or similar hazards or incidents within the past 12 months; (3) is the business a repeat offender with a history of egregious, willful, failure-to-abate, or repeated citations. The worse the history, the more likely an inspection.
Programmed / Targeted Inspections
The Programmed selection process is based on OSHA’s National Enforcement Plans which focus on employers in particular industries. The primary industries include manufacturing, construction, primary metals and industries which use highly toxic chemicals, generate combustible dusts or particulates that can produce chronic organ disorders. Selections under this process are random.
The Site-Specific Targeting process is based on OSHA-developed risk categories.
- High Risk – The determination is based on an employer’s “DART” rate, a mathematical safety metric mandated by OSHA. OSHA considers an employer to be high risk if its DART rate greatly exceeds the national average for the industry.
- Upward Trending – Employers with DART rates above the national average that increased each of the last three years.
- Low-Rate Establishments – To verify the reliability of the Form 300A data reported to OSHA, the agency will generate a random sample of establishments with low DART rates from the year before.
- Non-Responders – Employers that have failed to provide the required Form 300A data to OSHA for several years will be subject to random sampling for inspection. OSHA has created this category to discourage employers from not complying with their obligation to report injury and illness information in an attempt to avoid inspection.
TAKE AWAY
There are many reasons OSHA may choose to visit your business. Employers must keep in mind a long-standing maxim:
If OSHA visits, the question is not whether OSHA will find a violation, the question is how many. The solution is to reduce the risk of OSHA finding violations. How? Preaparation, preparation, preparation.
OSHA responsibilities arise before, during, and after industrial accidents and exposures. We believe that pre-planning for all three stages reduces employer risk.
Foremost, make safety and health a priority in your workplace and commit the necessary resources. Lessen the number of violations OSHA can find.
Second, develop and implement the required safety programs, training and in-house inspections – and document everything. Accidents happen. If an employer has programs and has conducted training, findings of employee error are more likely and may result in no citation or lesser penalties.
Third, know your rights under OSHA with respect to OSHA on-site inspections and investigations and prepare an inspection management plan so everyone knows what to do before OSHA knocks on the door, as well as during an inspection. Exercising these rights properly can limit the scope of an on-site inspection and investigation and reduce the risks of citations and penalties.
Finally, there are extremely short time-frames to accept, settle or challenge citations. Based on your observations of the on-site inspection, the actions of the investigator, and the documents requested by OSHA after the inspection, anticipate the citations that might be issued and assess in advance whether you will voluntarily abate or challenge the citation.
The Christian & Small OSHA Response Team is here to help if you need assistance with any or all of these stages.
About Christian & Small
Christian & Small LLP represents a diverse clientele throughout Alabama, the Southeast, and the nation with clients ranging from individuals and closely-held businesses to Fortune 500 corporations. By matching highly experienced lawyers with specific client needs, Christian & Small develops innovative, effective, and efficient solutions for clients. With offices in Birmingham, metro-Jackson, Mississippi, and the Alabama Gulf Coast, Christian & Small focuses on the areas of litigation and business, is a member of the International Society of Primerus Law Firms, and is the only Alabama-based member firm in the Leadership Council on Legal Diversity. Our corporate social responsibility program is focused on education, and diversity is one of Christian & Small’s core values.
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