Inspections, Citations, & Penalties

1. Inspections, Citations, & Penalties MODULE 5

2. Basis in the Act • Sections 8-10 and 13 of OSH Act authorize DOL to inspect and issue citations • Sections 11 and 12 authorizes review of citations • Section 17 authorizes civil and criminal penalties

3. Basis in the Act • In Section 8(a), OSHA representatives are authorized to: • Enter without delay, at reasonable times • Inspect during regular working hours and at reasonable times • Question privately employers and employees

4. Regulations 29 CFR 1903

5. 29 CFR 1903.1 Purpose and Scope • Purpose: • To prescribe rules and to set forth general policies for enforcement of the inspection, citation, and proposed penalty provisions of the Act. • Describes authorization and source

6. 1903.2 Postings, Availability of the Act, Regulations & Standards • Employer must keep a notice posted • Posted conspicuously at each physical location where employees report • State poster acceptable • Available in English or Spanish • Provisions to make standards available • Available at OSHA Area Offices • Employer’s materials must be made available to employees on request

7. 1903.3 Authority for Inspection • CSHOs can enter and inspect where employees are working • To investigate conditions of equipment, structures, machines and materials • To question owners, employees or representatives • To review records required or directly pertinent to the inspection

8. 1903.4 Objection to Inspection • CSHOs must be allowed • To enter and inspect at reasonable times • To be accompanied by employee representative • If employer refuses, CSHO will: • Terminate the inspection or limit it to areas without objection • Find out the reason for refusal • Report the refusal and reason to the Area Director • Warrants may be sought in advance

9. 1903.5-1903.6 • 1903.5 Permission to enter does not imply waiver of citation or penalty • 1903.6 Advance notice not given except • Imminent danger • After business hours • Special preparations necessary • Assure employer and employee presence • As determined by Area Director

10. 1903.7 Conduct of Inspections • CSHO arrives & shows credentials • Nature, purpose and scope of inspection • Can include photos, IH samples, questioning personnel, etc..

11. 1903.7 Conduct of Inspections • CSHO follows company’s safety procedures • No unreasonable disruption of work • Closing conference to: • CSHO discuss apparent violations found • Employer opportunity to discuss workplace conditions

12. 1903.8 Employee and Employer Representatives • Representatives of employer and employees given an opportunity to accompany to aid in inspection • CSHO authorized to determine representative or will consult with reasonable number of employees • Third party non-employee, e.g. engineer or industrial hygienist, may accompany with good cause • Interference with CSHO’s inspection prohibited • Classified information and trade secrets protected

13. 1903.9 Trade Secrets • Employer trade secrets are protected • Violations can result in $1,000 fine, 1 year in jail, and work removal

14. 1903.10 Consultation with Employees • CSHOs may consult with employees on matters of safety & health • Any employee has a right to point out apparent OSHA violations to the CSHO

15. 1903.11 Complaints by Employees • Employees may send complaints to CSHO or Area Director in writing • Full inspection if reasonable grounds exist • Complaint shown to employer no later than inspection date • Employees can request anonymity • Employer retaliation is prohibited

16. 1903.13 Imminent Danger • If CSHO finds imminent danger: • Will tell employees and employer • If expected to cause serious harm before enforcement solves issue • Citations may still be issued, even if problem is fixed

17. OSHA Inspection Priorities

18. Inspection Priorities • Imminent Danger = top priority • Employees notify employer of imminent danger • If no action taken, notify OSHA • Catastrophes and Fatal Accidents = second priority

19. Inspection Priorities • Employee Complaints = third priority • Referrals from employees & outside agencies of unsafe or unhealthful conditions • Informal review for situations not inspected • Confidentiality is maintained on request

20. Inspection Priorities • Programmed High-Hazard Inspections = fourth priority • Aimed at high hazard industries, occupations, or health substances • Selection criteria examples: • Death • Lost workday case rates • Exposure to toxic substances

21. Follow-up Inspections • Determine whether previously cited violations have been corrected. • “Notification of Failure to Abate”

22. OSHA Inspection Priority Review • Imminent Danger • Catastrophes and Fatal Accidents • Employee Complaints and Referrals • Programmed High-Hazard Inspections • Follow-Up Inspections

23. OSHA Inspection Process

24. Pre-Inspection Preparation • Compliance Safety and Health Officer (CSHO) becomes familiar with facility • History • Nature of business • Relevant standards • Industrial hygiene equipment selection

25. Inspection Process: Arrival • CSHO arrives at facility and displays credentials • Employers should always verify the identity of the CSHO • United States Department of Labor ID including photo and serial number • Verify by phoning OSHA

26. Opening Conference • CSHO explains: • Why facility was selected • Purpose of visit, inspection scope and applicable standards • Complaint copies distributed (if applicable) • Employee representative may be summoned

27. Inspection Tour • CSHO determines route and duration • Consults with employees • Photos • Instrument readings • Examines records

28. Inspection Tour • CHSO points out unsafe conditions • May point out possible corrective actions if employer requests • Employer chooses how to abate hazard • Some may be corrected immediately • May still result in citation

29. Closing Conference • Discussion of problems, questions and answers • Discussion of recommended citations • Time needed for abatement • Only Area Director issues citations and assesses penalty $$$

30. 1903.14 Citations • Area Director reviews CSHO’s inspection report • Six month limit to issue citation following occurrence of alleged violation • Citations will describe particular violation of The Act, standards, etc.

31. Types of Violations

32. Serious Violation • High probability of death or serious harm • Mandatory fine, up to $7,000 • Adjusted downward: • Good faith • Gravity of alleged violation • Violation history • Size of business

33. Willful Violation • Employer knowingly commits with plain indifference to the law • Either knows action is a violation or • is aware of hazardous condition • with no effort to eliminate • Up to $70,000 for each • Minimum of $5,000

34. Willful Violation • If convicted of WV that has resulted in death: • court imposed fine, • up to six months in jail, or both • Criminal conviction, up to $250,000 for individual; and years in jail • $500,000 for corporation • Corporate officers may be imprisoned

35. Repeat Violation • Same or substantially similar • Up to $70,000 for each violation

36. Failure to Abate • Up to $7000/day for each violation not abated • Maximum of 30 days

37. Other Than Serious Violation • Normally would not cause death or serious injury • Normally no fines • Fines levied may be lowered up to 95% • Factors: • Good faith (related to safety and health program) • History of violations • Size of business

38. De Minimis Violation • No direct relationship to safety or health • No fines

39. Other Violations • Falsifying records • Up to $10,000, six months in jail, or both • Violations of posting requirements • Civil fine up to $7,000 • Assaulting, interfering with, intimidating a CSHO while performing their duties • Up to three years prison and • $5,000 fine

40. Reduction of Penalties • Some contested penalties are reduced: • Up to 60% for small employers • Up to 25% for “good faith” • Written safety and health program • Only incidental deficiencies • Up to 10% for citation history

41. Increase of Penalties • Multiplied if previously cited • Factor varies by employer size • Multiplied for willful violations

42. Citation Questions • Who - if anyone - goes to prison? • Employer = entire chain of supervision • Attempts to identify the person most reasonably considered at fault • Where does the money go? • National Treasury • Not ear-marked for OSHA

43. Response to Inspection

44. 1903.14a Petitions for modification of abatement date • Employer may petition for extension of abatement date after good faith effort to comply: • Petition in writing • Steps and dates of action taken • How much more time is requested and reasons • Interim safeguards to protect employees against cited hazard

45. 1903.15 Proposed Penalties • Notice of proposed penalties for citations issued to employers • Area Director determines penalties based upon: • Size of business • Gravity of violation • Good faith of employer • History of previous violations

46. 1903.15 Proposed Penalties • To contest a citation or proposed penalty before the Review Commission: • Notify the Area Director in writing • Within 15 working days • Otherwise, cannot be contested

47. 1903.16 Posting of Citations • Employer must post unedited citations • Near each place violation is alleged, or • Place readily seen by affected employees • For at least 3 days or until abated • Notice of contest may be posted too

48. 1903.17 Employer and employee contests • Employer may contest either or both: • Citation • Penalty • Employee may contest time to abate • Postmarked within 15 working days • Area Director notifies Review Commission

49. 1903.18 Failure to correct violation • If inspection finds failure to correct cited violation within period permitted: • AD notifies employer of violation/penalty • Period for correction starts after any review • These citations may also be appealed • Notify AD within 15 working days

50. Abatement Period • Time provided to correct violations • Cost of correcting violations may be greater than citation cost • Penalty reductions for failure to abate violations: • Good faith • Partial abatement