Howard B. Eberts Area Director OSHA – Cleveland, Ohio What to Do When OSHA Arrives – OSHA Inspections Medina County Safety Council August 19, 2014
Howard B. EbertsArea Director
OSHA – Cleveland, Ohio
What to Do When
OSHA Arrives –
OSHA Inspections
Medina County Safety CouncilAugust 19, 2014
OSHA’s MissionAssure so far as possible safe and healthful
working conditions for every working man
and woman in the nation.
0
2.75
5.5
93 94 95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 11 12*
5.2 5.3
4.9 4.8 4.84.5 4.5
4.3 4.34 4 4.1 4
4.24
3.73.5 3.6 3.5
3.2
Fatal Work Injuries per 100,000 Workers
7
Fatality RATES are
down 35% since
1994
Rate of Fatal Work Injuries Continues to Drop
1993-2012
Source: Bureau of Labor Statistics (*preliminary 2012 data)
270, 32%
223, 27%
340, 41%
Fatalities by Industry FY 2007 - FY 2013
Construction
Manufacturing
Other
224
211
223
47
68
3327
0
50
100
150
200
250
Struck Caught Fall Exposure Electrocution Fire/Explosion Other
Fatalities by Event FY 2007 - FY 2013
73
55 55
44 43
37 36
0
10
20
30
40
50
60
70
80
Struck by fallingobjects
Caughtbetween
moving andstationary
object
Caught in orcompressed byequipment or
objects
Fall from ladder Caught inrunning
equipment ormachinery
Contact withoverhead
powerlines
Struck by workvehicle on site
Top Events FY 2007 - FY 2013
Federal OSHA
• OSHA Staff: 2,305
• Workers: 130 million
• Worksites: 8 million
• Regional Offices: 10
• Local Area Offices: 90
Federal OSHA
Ohio Offices• OSHA Inspectors: 58
• Workers: 5.0 million
• Worksites: 287,865
• Local Area Offices: 4
– Toledo
– Columbus
– Cleveland
– Cincinnati
Who is covered by the OSH Act?
• Most private sector employees
• Coverage is provided directly by federal
OSHA or through an OSHA-approved state
program
• Does not cover the self-employed or
immediate members of farm families that do
not employ outside workers
OSHA Emergency Hot-Line1-800-321-OSHA
• Report workplace safety or health fatalities or the hospitalization of 3 or more employees
• Report a workplace hazard
• File a complaint about a workplace hazard
• Request information on OSHA
• Request an OSHA publication
Employees have the right to file a
complaint with OSHA
Section 11 (c) of the OSHA Act
Prohibits any employer for
discriminating against an
employee for filing a complaint
with OSHA
17
Whistleblower• FY 13, Region V received 506 Whistleblower
complaints (19% of Nation’s total)
315 – 11(c) cases
119 – 11(c) - merit cases
13 – 11(c) Complainants reinstated
$957,745 – wages recovered for Complainants under 11(c)
• In Ohio:
– 182 Whistleblower Complaints
138 – 11(c) Cases
58 – 11(c) - merit cases
$369,311 wages recovered for Complainants under 11(c)
7 – 11(c) Complainants reinstated
Workplace Inspections
• Every establishment
covered by the OSH Act
is subject to inspection by
OSHA compliance safety
and health officers
(CSHO's)
• Most inspections are
conducted without
advance notice
OSHA Inspections
• Imminent Danger – any condition where there
is reasonable certainty 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
• Catastrophes and Fatalities – death of one or
more employees or the hospitalization of three
or more employees [Report within 8 hours]
OSHA Inspections
• Employee Complaints
– Formal: Complaint signed by a current employee - an inspection
– Non-Formal: Complaint with no signature, anonymous, public, former employee – no inspection (phone & fax)
• Referrals
– Law Enforcement
– Other Governmental Agencies
– Media
Complaints
• The Occupational Safety and Health Act of
1970 gives employees the right to file
complaints about workplace safety and
health hazards. Further, the Act gives
complainants the right to request that their
names not be revealed to their employers.
OSHA Inspections
• Programmed Inspections
– National Emphasis Programs (NEP)
– Local Emphasis Programs (LEP)
– U-Tenn inspections (Construction)
25
National Emphasis Programs
Current:
• Amputations
• Combustible Dust
• Fed Agencies
• Food Flavorings
• Hex Chrome
• Lead
• Primary Metals
• PSM (Chem Plants)
• Nursing Homes &
Residential Care Facilities
• Silica
• Ship Breaking
• Trenching
• Isocyanates
26
Region V Local Emphasis Programs
(LEPs) - FY 14
• Fall Hazards (Construction & General Industry)
• Primary Metals
• Grain Handling Facilities
• Tree Trimming Operations
• Powered Industrial Vehicles (Construction & GI)
• Maritime (IN, MI)
• Building Renovation/Rehab - “Gut Rehab”
• High Rise Construction (Chicago AOs)
• Dairy Farm LEP (Wisconsin AOs)
• Federal Agencies (IN, MI, MN)
OSHA Inspections
• Follow-ups
– Fatalities and Catastrophes
– Significant Cases
– No abatement verification
OSHA INSPECTIONS
• Inspection stages– Inspector’s Credentials
– Opening Conference
– Walkaround
– Closing Conference
– Citations
– Review Process
– Abatement Verification
– Can happen anytime including Saturdays
Inspector’s Credentials• Inspector displays credentials
• Asks to meet an appropriate employer representative – Be sure all employees know who is
in charge at the job site
– CSHO usually will wait a reasonable amount of time. Depending on amount of time, reason for delay & type of inspection
– OSHA will get a warrant if necessary
Inspector’s Credentials
(Cont.)• Employers should always ask
– There are individuals that will say they are OSHA to get on the jobsite for various reasons (competitors, vendors, attorneys, etc.)
• Employer can call local OSHA office to verify
Opening Conference• Inspector:
– Explains how worksite was selected
– Explains scope of inspection
– Provides copy of complaint (if applicable)
• You will not be told who filed the complaint
• Employers cannot discriminate against an
employee for filing a complaint
Opening Conference
(Cont.)• Inspector:
– Asks for employer representative to
accompany them during the inspection
• Important to have representation during
inspection
• Answer questions, offer explanations, etc.
– Asks for an authorized employee
representative (union) to accompany them
during an inspection
The WalkaroundInspector:
• Proceeds through the establishment to identify
safety and health hazards
– A company representative should be
present
– Cooperative and respectful
– A second employee to abate minor
violation
• Determines route and duration of the inspection
• Talks privately with employees
The Walkaround (cont.)
Inspector:
• Takes photos/videotapes
– Company Rep. should take pictures of
same angle and other if apply
• Reviews records, programs
– Be sure your records are in order. Last
minute is no time to put them in order
• Conducts monitoring (if applicable)
Four Hazards Emphasized By
OSHA On Construction Sites
• Falls
• Electrical
• Struck By
• Caught between
• A good safety program should address all of these issues
The Closing Conference• All observed unsafe and unhealthful conditions are
discussed
• Violations for which a citation and penalty may be issued are indicated
• Inspector will not indicate any specific penalty but informs employer of appeal rights
• Abatement times are discussed
• Appeals processes are discussed
• Separate closing conference if employee representative does not participate
• Good time to ask questions about the process if you have any
Post Closing Conference
• Inspector reports findings
• Area Director determines whether citations will be
issued and whether penalties will be proposed
• Site employer representative should compile his
notes to create a report to be filed with management
• During this time get field and Mgt. personnel
together, review all notes and documents and
determine what steps need to be taken next
• Remove employees from hazards! Interim protection
where necessary
Citations
• Employer will receive citations and notices by
certified mail
• Employer must post a copy of each citation at or
near the place the violation occurred for 3 days or
until it is abated – whichever is longer
• Inform the employer and employees of the
regulations and standards alleged to have been
violated
• Inform the employer and employees of the
proposed abatement date
• Appeals process is explained
Citations: Types of
Violations
• Violations
– other-than-serious
– serious
– willful
– repeat
– failure-to-abate
Other-Than-Serious
• Direct relationship to job safety and health
but would not cause death or serious
physical harm
• Penalty $0 to $7000
• May be adjusted downward as much as
95% (size, good faith, and history)
Serious
• Substantial probability that death or
serious physical harm could result
• Penalty $1500 to $7000
• May be adjusted downward for size, good
faith, and history
Willful
• Employer intentionally and knowingly
commits
– Employer is aware of the hazardous
condition
– Employer knows it violates a standard or
obligation of the Act
– Employer makes no reasonable effort to
eliminate the hazard
Willful
• Penalty $5000 to $70,000
• Criminal sanctions may be imposed if
resulting in the death of an employee
– Penalty of $250,000 ($500,000
corporation)
– or 6 months imprisonment
– or both
Repeat
• Inspection reveals a substantially similar
violation is found and the original citation
has become final order
• Penalties up to $70,000 for each violation
Failure-to-Abate
• Employer fails to correct a prior violation
• Penalties up to $7000 per day beyond the
prescribed abatement date
Citations• Once an employer receives a citation notice a copy
of each citation must be posted at or near the place
the violation occurred for 3 days or until it is abated
(which ever is longer) even if you contest the
citation.
• If employer agrees to the citation and penalties
– Correct the conditions by the date set
– Notify the Area Director by Certified Mail of the
corrective action
– Pay any penalties within 15 working days of receipt
of notice
Citations (Continued)
• Informal Settlement Agreement
– Before filing a Notice of Intent to Contest
– Request an Informal Conference with the
Area Director
Citations (Continued)
• Informal Settlement Agreement
– At the Informal Conference you may be able to get a:
• Better explanation of violation(s)
• Better understanding of standard cited
• Negotiated agreement
• A what to correct violation
• Discussion on problems with abatement date
• Discussion on employee safe work practices
• Resolution the disputed citation and penalties
Citations (Continued)
• Informal Settlement Agreement
– Often an Informal Settlement Agreement will be sent
with the citation
– Must be done within 15 working days of the citation
Citations (Continued)• If employer does NOT agree the employer has 15
working days from the date of receiving the citation
to contest in writing the citation, proposed penalty
and/or abatement date.
– Penalties and/or abatement dates will be suspended
until Review Commission’s final order
– Contest must be made in good faith
– If only penalty or some items are contested the
remainder must be abated or paid by the date on the
citation.
– Penalties and/or citations properly contested will not
have to be abated or paid until resolved
Citations (Continued)
– The Employer can try to settle with OSHA’s attorney
– IF not, a hearing (trial) will be scheduled
– You my represent yourself or have council
– The judge can affirm, modify or eliminate any
contested items
– Either party can request a review of the full Review
Commission
– The Commission’s ruling can be appealed to the U.S.
Court of Appeals
Nationwide FY13
Top 10 Most Cited Standards
1. Fall Protection
2. Hazard
Communication
3. Scaffolding
4. Respiratory
Protection
5. Electrical, Wiring
Methods
6. Powered Industrial
Trucks
7. Ladders
8. Lockout/Tagout
9. Electrical, General
Requirements
10.Machine Guarding
Data Source: OIS Frequently Cited Stnds. Rpt. Dated 9/17/13
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Can we beat an OSHA
citation?• Employee Misconduct
• Must prove all four of these:
– Work rule
– Rule is communicated
– Monitor compliance
– Discipline
54
Best Lines
• “That’s not me in your photo.”
• “I conduct surprise inspections all the time
and I have never seen my folks without fall
protection.”
• “My foreman told me that OSHA didn’t find
anything wrong.”
• “I trust my son and your compliance officer
is full of sh$#!”
55
Howie’s Tips For Employers
• Have a plan to inform top managers of OSHA’s
arrival and results
• Take notes and photos
• Ask Compliance Officer questions to help you
understand hazards and corrective actions
• Provide documents as soon as possible
• Make sure you understand what is being
requested
• Be respectful
• Don’t impede Compliance Officer