The Occupational Safety and Health Act, enacted by the U.S. Congress on December 29, 1970, was designed “to assure every working man and woman in the nation safe and healthful working conditions and to preserve our human resources.” The act assigns the responsibility or “general duty” for creating and maintaining such a working environment to the business owner or employer. By initiating a proactive approach toward identifying safety and health hazards, developing comprehensive plans to eliminate them, and implementing an effective training program, owners and managers can fulfill their obligations under this act. In addition, the morale and productivity of those working in a facility increased, work-related injuries and illnesses are prevented, and a variety of expenses ranging from lawsuits to insurance premiums to OSHA fines are reduced or eliminated.
Here are some of the most frequently asked questions about OSHA standards and regulations, as well as timely answers to them.
How does OSHA monitor employers and enforce regulations?
Currently, OSHA is divided into ten regions that govern different states and territories. Within each region are area directors and CSHOs (compliance safety and health officers). There are two types of CSHOs:
- those who enforce the safety standards
- those who enforce the health standards
One of the primary functions of OSHA is to enforce safety and health regulations. The agency’s CSHOs conduct compliance inspections to enforce these regulations.
As a building owner or manager, you may find yourself on the receiving end of an OSHA citation, even though the employees at risk from an unsafe working condition are not yours but those of a tenant or contractor. At multi-employer work sites, such as office complexes or construction sites, citations are normally issued to the exposing employers—the employers whose employees are exposed. Additional employers and facility owners may be cited, however, even if their own employees are not at risk.
Other types of employers normally cited are the following:
- The creating employer: The employer who actually creates the hazard.
- The controlling employer: The employer who is responsible, by contract or through actual practice, for safety and health conditions at the work site. That is, the employer who has the authority for ensuring that the hazardous condition is corrected.
- The correcting employer: The employer who is responsible for actually correcting the hazard.
Under what conditions might I be issued an OSHA citation? As a building owner or manager, you may be issued a citation during a workplace inspection if a tenant can prove all of the following to OSHA:
- The tenant did not create the hazard.
- The tenant was not responsible for or authorized to correct the hazard.
- The tenant did not have the ability to correct or eliminate the hazard.
- Each of the creating, controlling, and/or correcting employers, as appropriate, has been specifically notified in writing of the hazards to which their employees are exposed.
How are OSHA violations classified?
The violations that carry the highest penalties are those determined to be willful. When death or serious physical harm results from an uncorrected hazard, it may be classified as willful. The violation may also be classified as willful in cases where, even though no fatality or serious injury occurs, documents show that a manager was aware of a hazard that could potentially result in serious physical harm yet took no corrective measures.
Violations that are classified as serious are hazards that could cause death or serious physical harm, yet a complete disregard for the safety and health of the individual(s) affected is not apparent. For example, the lack of appropriate electrical protection—that is, absence of a GFCI (ground fault circuit interrupter) for a person who needs to use electric power tools.
A repeat violation indicates that a compliance officer has noted the same violation at the same place of employment within the past three years.
An other-than-serious violation carries the lowest penalties and indicates that violation—such as the lack of a written program—was not life-threatening and that the employer did not have previous knowledge of the health or safety standard violation.
Penalties associated with violations are based on the owner’s and/or manager’s prior knowledge of a hazardous situation. The compliance officer conducts interviews with the affected employees and management personnel to show that there was prior knowledge. Again, the fines increase exponentially according to the length of time the violation existed and the number of workers affected. OSHA also notifies local newspapers and television broadcasters of your violations. This action can severely damage an organization’s public image.
What are the reasons for an OSHA inspection?
An OSHA compliance officer will arrive at your facility to conduct an inspection under the following circumstances:
- A fatality or catastrophe: OSHA requires that a work incident resulting in any fatality and/or three or more hospitalizations be reported directly and verbally to the agency within 8 hours. In addition, if the fatality or in-patient hospitalizations do not occur at the time of the incident but follow within 30 days after the incident date, OSHA still requires notification within 8 hours after the employer first learns of the incident’s associated fatality or hospitalizations.
If OSHA determines that the incident was caused by the owner’s or employer’s negligence or misconduct—that is, he or she was aware of the hazard but did not abate it—the agency can impose fines as high as $70,000 for each violation, for each day that the violation existed, and for each employee affected. In addition to monetary fines, criminal prosecution may also be imposed on the owner.
- A complaint issued by a tenant’s employee: OSHA previously investigated any written and signed complaint from any current employee or his or her representative. OSHA has now adopted new complaint investigation procedures that will cut the time that it takes to respond to worker complaints about workplace hazards. Under the new policy, when OSHA receives a complaint, it will determine whether to immediately inspect the alleged hazards. If an investigation is appropriate, the agency will call the employer, describe the alleged hazards, and follow up with a fax or letter. The employer can respond in kind, identifying any problems found and noting corrective actions taken or planned. Generally, an on-site investigation will take place thereafter.
What are my rights during an OSHA inspection?
Under the act, CSHOs have the authority to inspect your facility without advance notice. When a compliance officer arrives at your site, he or she must present credentials. Insist on seeing these credentials, which bear the officer’s photograph and U.S. Department of Labor serial number, and verify them with your regional office. You do have the right to refuse OSHA access to your facility and require that a warrant be obtained before an inspection is conducted.
If you do permit OSHA to enter, the site visit will begin with an opening conference during which the officer explains the nature of the visit, the scope of the inspection, and applicable standards. If the inspection is a result of an employee complaint, the officer will furnish a copy of the complaint, edited to conceal the person’s identity, if requested.
The manager will be asked to appoint an employee representative to accompany the officer during the inspection. (If workers belong to a union, the union or its representative has the right to determine the worker representative to accompany the OSHA inspection.) You should also take part in the inspection, documenting all actions and conversations. Such documentation can become crucial later in the inspection process if you decide to contest any of the officer’s findings. OSHA will conduct a thorough walk-through inspection of your facility, interview workers about safety-related issues, and review any pertinent or required records about injuries, illnesses, and written programs.
After the site inspection has been completed, the officer will hold a closing conference to discuss employer and employee rights and obligations, violations, and feasible schedules and techniques to abate the hazard(s).
This article is excerpted from BOMI Institute’s NEW Clean Air and OSHA Compliance Reference Guide. The guide can be purchased for $49.95, plus shipping and handling, by calling 1-800-235-BOMI (2664), or visiting www.bomi-edu.org.