Unfortunately, many people think they know about the consequences of an OSHA inspection gone wrong, but they don’t. This can have dire consequences financially or even criminally. Understanding the rights and responsibilities of everyone involved is critical to legally effective management of an OSHA site visit, and the scope of inspection and response is generally dictated by the triggering event.
Categories of inspection
OSHA has two main categories of inspection: programmed (site-specific targeting and national emphasis programs) and un-programmed (event-driven, including “plain view” and “imminent danger” sightings by an inspector, hazard and whistleblower complaints, severe injury/illness and fatality reports, and professional referrals that can include reports by hospitals, safety professionals, the EPA and even the USDA).
Federal OSHA oversees safety and health at worksites in 28 states, while state-run OSHA programs (which can be more stringent) operate in the remaining states and territories. While an employer can demand that OSHA return with a warrant before proceeding with an inspection, this is generally not advisable unless time is needed to get critical personnel or counsel to the worksite (e.g., post-accident).
The current maximum OSHA penalty is $134,937 per affected worker, and under the egregious penalty program, OSHA can issue separate penalties per affected worker. This action also places employers into OSHA’s “Severe Violation Enforcement Program,” which mandates follow up inspections at the employer’s other worksites. In addition, whistleblower actions OSHA accepts and prosecutes under Section 11(c) of the Occupational Safety & Health Act of 1970 (OSH Act) can result in federal court judgments of up to $250,000 for punitive and compensatory damages.
The un-programmed category takes priority in terms of OSHA enforcement resources, but just under half of OSHA inspections are considered programmed. Inspections under the Site-Specific Targeting program are lower priority, but are drawn from non-construction employers’ own data, submitted online to OSHA under the E-Recordkeeping rule (29 CFR Part 1904). The data is now searchable publicly on the OSHA website by employer, which facilitates contractor prequalification/verification.
There are currently nine National Emphasis Programs and more than 100 regional OSHA or local agency emphasis initiatives. The employer’s NAICS code is used to determine whether they are within the scope of a program. Site-specific inspections are wall-to-wall and include a record audit, while the NEP visits are limited to the scope of the initiative.
Reporting injuries, illness and COVID-19
Severe injuries or illnesses must be reported to OSHA online or by phone; fatalities must be reported within eight hours and in-patient hospitalizations, amputations and eye-loss cases must be reported within 24 hours. Failure to timely report triggers a mandatory minimum $5,000 penalty. OSHA follows up with on-site inspections in about half of the amputation cases, but only 25% of hospitalizations, while fatality cases or multiple casualties will normally warrant a visit by the agency.
In the age of COVID-19, OSHA has been swamped by whistleblower and hazard complaints, which has skewed their normal responses. After an initial hiatus during which only high-hazard worksites for COVID-19 were being visited, OSHA confirmed in May 2020 that it resumed all normal inspection activities. OSHA’s policy on when to report and record COVID-19 cases has fluctuated considerably in recent months, and some states have more stringent requirements.
While federal OSHA has no coronavirus-specific rule at this time, at least three of the state-run programs have enforceable emergency COVID-19 rules — California, Virginia and Oregon. Employers in multiple states will need to consider how to have uniform protections across state lines in order to avoid citations under OSHA’s “General Duty Clause” — the gap filler used where there is a recognized serious hazard to which workers are exposed, which has a feasible method of abatement.
Finally, it is important to note the OSH Act is a criminal statute. Willful violations resulting in the death of a worker are punishable by significant criminal fines and imprisonment, as are actions related to advance notice of inspections, false statements and falsification of documents. Individuals do have the right to counsel before giving or signing any statements, the right to refuse to be video/audiotaped and the right to give a statement. OSHA can use its subpoena power to compel statements and production of documents, but counsel can be involved, protective orders can be invoked and witnesses retain the right to assert the Fifth Amendment.
The stakes of mismanaging an OSHA inspection are high personally, professionally and financially. It is critical to have a clear understanding of what you can and cannot do legally in advance of that knock by OSHA on the door.