Coordinated by Liz Stevens, contributing writer, Plastics Business
Chris Whitehorne, director of safety at professional services company US Compliance, shares his extensive, valuable knowledge and advice regarding the Occupational Safety and Health Administration and its inspections of manufacturers’ plants.
Part 1: Get to know OSHA
OSHA has jurisdiction over approximately seven million worksites and normally conducts inspections without advance notice. The agency prioritizes its inspections in this order: imminent danger situations, severe injuries and illnesses, worker complaints, referrals, targeted inspections and follow-up inspections.
Triggers for OSHA inspections
Based on Whitehorne’s 10 years of experience with US Compliance, the most common motivations for OSHA inspections are employee complaints, national or local emphasis programs, reporting of serious injuries and fatalities, referrals and follow-up inspections.
Employee complaints that spark an OSHA inspection can come from active employees or former employees. Whether complaints are filed online or via phone, individuals are asked for their job status – active or former. In cases where a complaint is filed by a former employee, OSHA will typically send a letter to the facility in question. “If you respond to that letter, as long as you respond sufficiently, then they close out that employee complaint and they don’t come on site,” said Whitehorne.
On the other hand, a complaint from an active employee who reports an imminent danger – such as having to enter confined spaces without proper monitoring or working at heights greater than 12 feet without fall protection – will trigger an onsite OSHA inspection.
Whitehorne offered a simple solution to manufacturers who want to eliminate the potential of employee complaints leading to OSHA inspections: Listen to employees’ concerns, track them and address them in a timely manner. In many cases, complaints are ignored. “Employees come to a point where they’re so disgruntled and concerned about their own health and safety that they notify OSHA,” said Whitehorne, “so the best thing you can do is make sure you have a system in place for employees to voice their concerns, and make sure you actively respond.”
The three national emphasis programs that Whitehorne cited as OSHA inspection triggers that are most pertinent to the plastics and rubber industries include Amputations/Hazardous Machinery, Hexavalent Chromium and Combustible Dust. These are three examples of potential hazards that OSHA is targeting now, among its eight current national emphasis programs. To review all of OSHA’s national emphasis programs, visit www.osha.gov/enforcement/directives/nep.
OSHA’s local emphasis programs are established by its 10 regional offices. Whitehorne’s advice? “Identify what your local emphasis programs are and make sure you’re all buttoned up in those areas.” To identify OSHA’s 10 regions and check on the local emphasis programs in each of them, visit www.osha.gov/enforcement/directives/lep.
A facility’s OSHA history
Whitehorne stressed the importance of keeping track of one’s history with OSHA. “Have there been inspections in the past at your facility?” he asked. “Do you know what sites have had past citations? And most importantly, do you understand the citations and have you made sure your facility has addressed them and responded correctly?”
Via the OSHA website, www.osha.gov/pls/imis/establishment.html, manufacturers can look up their establishment and see its OSHA inspection, violation and penalty history. The information is especially important for manufacturers with more than one site. Those owners can get the full picture for each of their establishments, understanding that a violation at one facility will put sister sites with the same violation in line for penalties in the costly Repeat category.
Part 2: The inspection process
An on-site visit by OSHA begins with an opening conference during which the OSHA compliance officer explains the reason for the inspection. The visit continues with one or more review/inspection activities, and ends with a closing conference. The review/inspection aspect of an OSHA visit, explained Whitehorne, “includes a documentation review – where they are looking at programs, training and OSHA logs. There is a site inspection, typically tying in with employee interviews. And, depending on your process, they may look at industrial hygiene samplings as well.” In the closing conference, the OSHA compliance officer will outline the findings, make recommendations for improvements, and describe the possible citations that may be issued for violations. At a future date, there will be post-inspection proceedings.
To be ready for the day that an OSHA inspector knocks on the door, Whitehorne recommended being proactive and having an internal OSHA inspection plan. “Most importantly,” said Whitehorne, “know your risks and address them.” It is important for manufacturers to identify the top three to five risks at each facility and be sure they have been addressed. Next comes eliminating common red flags so that the site is in top-notch condition with “good housekeeping, proper lighting, clear aisles, proper PPE being worn, and clear access to all emergency equipment.”
The three most common issues that Whitehorne sees being targeted by OSHA are lockout/tagout, haz-com and guarding. “Really, these are the primary areas of focus when they are coming into a facility, so it’s important to address those well in advance of OSHA showing up.”
Make a plan
Whitehorne stressed the value of making a plan for how personnel at a facility will handle an OSHA inspection visit. It is crucial to plan who will meet with the OSHA compliance officer, and who else might need to be on hand to answer questions. Whitehorne pointed out that while the plant manager or an EHS person or someone in charge of maintenance might be the designated contact for an inspection, it’s smart to have a backup contact in case the primary contact is not on site.
As part of the planning, said Whitehorne, “know when to use your resources during inspections. If you know that OSHA has come regarding a national emphasis program, such as lockout/tagout, it’s critical that you have whoever wrote your lockout/tagout program and whoever wrote your specific procedures involved in the inspection process.”
The first agenda item during an inspection – the opening conference – is an important opportunity because, as Whitehorne put it, “this is your last chance to possibly stop or limit that inspection.” After an OSHA compliance officer has described the reason for the inspection, it may be possible to correct a misunderstanding or to manage a narrowly focused inspection. But, as Whitehorne pointed out, “Just be aware that even if OSHA comes on site for an employee complaint or an emphasis program, they can extend the scope if they see open and obvious safety concerns.”
During a visit, OSHA compliance officers have the right to interview employees. Whitehorne said that, generally, OSHA will request that a few employees be brought for interviews, which allows plant management to choose employees who are knowledgeable about the plant and its safety programs. OSHA may choose to interview specific individuals, but this is the exception rather than the rule.
The interviews will be conducted in a private setting, but employees may ask to have someone from management or one of their peers present. Whitehorne recommended that the facility’s designated inspection contact stay out of earshot but within sight during the interviews, to be available for any questions that may arise.
Keep all records for safety programs and training up to date and easily accessible. Give the OSHA inspector just the records requested, but not the entire library of documentation. Provide one program or one training record at a time, as requested.
When it comes to OSHA injury logs, Whitehorne reminded manufacturers that OSHA-reportable injuries must be added to a facility’s OSHA log within seven days. “There’s nothing worse than an OSHA inspector coming on site,” said Whitehorne, “and asking for your OSHA logs – typically three to five years’ worth – and you’ve got to run to HR, and they’ve got to backlog it for the last two months to get all that data on them. It’s really important that OSHA log information is accurate and readily available.”
Make sure that plant workers are wearing proper PPE while an inspection takes place, and make sure that the inspector wears it too. Have the designated plant contact accompany the inspector for the entire inspection; failing to do this can lead to inspectors writing up violations that might easily have been challenged or explained by the plant contact.
“Take good notes,” Whitehorne urged. “If they are taking notes down, don’t be afraid to ask, ‘Hey, what are you taking notes for?’ They should explain to you what they’re doing and why they are noting something.” Also, take the same photos that OSHA does. If they take a photo, take the same one for your own notes.
Whitehorne had some key advice for concluding the inspection walk-through. “Most importantly, if there are quick fixes you can make, make them.” Why do it immediately? “It shows good faith – you’re abating a hazard,” he said, “and OSHA will take that into consideration if they even record a violation for that problem. If there is anything you can immediately fix, you want to do that during the walkthrough.”
The closing conference
During the last agenda item in an inspection – the closing conference – the OSHA compliance officer will explain the violations that will be relayed to the OSHA area director for possible citations. The officer will describe what is expected of the employer if citations or penalties are imposed by the area director, the time period allowed for OSHA to issue citations (six months), and the options available to the facility once citations have been issued.
While the opening conference is the last chance to stop or limit an inspection, the closing conference offers an equally important occasion. “It’s your last opportunity to demonstrate compliance,” said Whitehorne. If, for example, program records that were requested at the start of the visit could not be found but, in the interim, they have been located, get them in front of the inspector during the closing conference. “Abate as much as possible,” advised Whitehorne. “Show everything that’s closed out, as much as possible, before the inspector leaves the facility.”
Part 3: OSHA citations
Following an on-site inspection, OSHA has six months to issue citations for violations. In certain cases, OSHA may issue citations but offer an expedited informal settlement agreement with reduced penalty amounts. When citations are received, a manufacturer may accept the citations without argument or may choose to challenge the allegations. In all of these instances, the manufacturer may request an informal conference at the OSHA area office to discuss or challenge allegations and to negotiate penalties, but the conference must take place within 15 days of receiving citations. If, after an informal conference, the manufacturer still feels that a resolution has not been reached, a formal contest process can be initiated.
An expedited informal settlement agreement may be offered for first-time offenders. “And if you showed good faith during the inspection and all your hazards fell below the willful category,” explained Whitehorne, “they will offer you a 30% reduction immediately on the citations issued. You can sign the agreement and close out that inspection.”
In other cases when presented with citations, said Whitehorne, “you can accept the citations, pay them, abate the issues and move on. OSHA will maintain the violation records for five years to reference for potential repeat citations.” But Whitehorne stressed the value of requesting an informal conference. “We always recommend the informal conference, no matter what,” said Whitehorne. “Even if you get the expedited informal settlement, it could still be beneficial to attend the informal conference.”
The informal conference
“The informal conference,” said Whitehorne, “is truly informal. You walk in, you sit down with your inspector and the area director, and you go through your packet of all the citations that were issued to you.”
Who should attend? “We always recommend that you show up as the EHS manager,” said Whitehorne. “But it’s really important to show commitment from higher-ups within the organization, such as the VP of operations or the operations leaders, to demonstrate that everybody in the organization owns this.”
Whitehorne recommended arriving with a plan to show that all issues have been abated or, if not abated, what interim controls have been put in place and the long-term plans for abatement. “This is your opportunity to communicate your commitment to safety and health,” said Whitehorne. “Maybe it’s been six months since OSHA has been at your site. You can say, ‘Here are all the things we’ve done in six months. Everything’s been abated. We want to show our good faith efforts to improve workplace safety.’”
There are a number of items that can be negotiated in the informal conference. Regarding an alleged violation, was it valid or not? Has the correct citation number been cited? Other negotiations can include the violation category – serious or non-serious – and the abatement period.
The affirmative defense stance
An argument that can be used to ask for dismissal of a violation/citation is the Affirmative Defense Stance – “A claim which, if established by the employer and found to exist by the Compliance Officer, will excuse the employer from a documented citation.” There are three explanations that a manufacturer can cite in arguing affirmative defense:
- Compliance creates a greater hazard
- Impossibility or infeasibility of compliance
- Unpreventable employee or supervisory misconduct, or an “isolated event”
Strict criteria must be met for these arguments to be successful.
While an OSHA inspection can be stressful, knowing what to expect during the inspection and conferences goes a long way toward reducing the anxiety level. So does knowing one’s OSHA history, being up to speed on national and local emphasis programs, and being aware of the potential “hot spots” at one’s facility. With knowledge in hand, manufacturers can review their sites to correct any obvious red flag issues, keep documentation complete and current, and plan for who will represent the facility and interact with the compliance officer. Each bit of knowledge, preparation and planning takes a big bite out of the anxiety that can accompany an OSHA inspection.
Chris Whitehorne is in his 11th year with US Compliance. He manages and provides EHS services in a multitude of industries, and also has extensive experience in managing OSHA inspections, reviewing and investigating serious accidents and completing comprehensive health & safety audits.
More information: www.uscompliance.com