CFR 1903 INSPECTIONS, CITATIONS AND PROPOSED PENALTIES 1-hour Lesson Sam Mason, CMfgT, CSTM Authorized OSHA Trainer Morehead State University

Background  The OSH Act of 1970, Public Law , establishes a General Duty for all covered employers.  Section 5(a)(1) of the Act :  Every employer shall furnish to his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees

Background  The OSH Act of 1970 requires:  The Act also requires that employers comply with occupational safety and health standards promulgated under the Act, and that;

 Section 8 of The Act authorizes the Department of Labor to conduct inspections, issue citations and proposed penalties  8(a); OSHA representatives are authorized to: (1) enter without delay, at reasonable times, and; (2) inspect during regular working hours and at reasonable times and; (3) To question privately employers and employees Background

Most Frequently Cited Serious Violations in General Industry – FY 2000 *Hazard Communication - Written program Machine guards - General Eye & body flushing facilities Point of operation Open-sided floors Pulleys Lockout - Program Grinders - Tongue guards *Hazard Communication - Training Note: There were also 1023 Section 5(a)(1) General Duty Clause violations cited during this period. Live electrical parts * violations include both General Industry and Construction due to the consolidation of standards.

 The Act contains provisions for adjudication of violations  Periods prescribed for the abatement of violations Background

 The purpose of Part 1903 is:  To prescribe rules and to set forth general policies for enforcement of the inspection, citation, and proposed penalty provisions of the Act. Background Rules

Postings, Availability of the Act, Regulations & Standards  Employers must post notice(s) provided by OSHA informing employees of the protections and obligations provided for in the Act and:  For assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor.  Posted in conspicuous location(s)  Not altered, defaced or covered  Failure to comply with above subject to fine and penalty

Postings, Availability of the Act, Regulations & Standards  All OSHA regulations are available at all Area Offices  The employer’s OSHA materials must be provided to employees upon request  Failure to comply with the provisions of can result in citations and fines

Authority for Inspection  Authority granted by Section 8 of The Act  CSHO’s can enter workplaces and conduct inspections where employees are working  Inspect and investigate conditions equipment, structures, machines and materials  To question owners, employees or representatives  To review records required by the act or directly pertinent to the inspection

Objection to Inspection  CSHO’s must be allowed to enter and inspect at reasonable times, and be accompanied by an employee representative  Upon refusal by the employer to comply with the above the CSHO will:  Terminate the inspection, or;  Limit the inspection to areas where no objection is raised  Obtain the reason for refusal  Report the refusal and reason to the Area Director

Objection to Inspection  In some cases compulsory processes will be sought in advance of an inspection:  Employer’s past practice  Inspections far away from the local office  When special equipment or experts are needed

 Permission to enter, inspect, review records, or question any person, is not a waiver of any cause of action, citation, or penalty under the Act  Compliance Safety and Health Officers (CSHO) are not authorized to grant any such waiver Entry not a waiver

Advance notice of inspections  Advance notice of inspections is not given except:  Imminent danger  Off-hour inspections  To assure the presence of necessary personnel  Special circumstances determined by the Area Director  Penalty for unauthorized notice, up to $1,000, six months, or both

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

 CSHO follows company’s safety procedures  Precludes unreasonable disruption of work  Closing conference to:  CSHO discuss apparent violations found  Employer opportunity to discuss workplace conditions Conduct of Inspections

Representatives of Employers & Employees  (a) Representatives may accompany to aid in inspection  (b) CSHO shall resolve all disputes to determine authorized representative or will consult with reasonable number of employees  (c) Employee representatives are employees of employer unless special circumstances  (d) Interference with CSHO’s inspection prohibited  are authorized to deny the right of accompaniment under this section to any person whose conduct interferes with a fair and orderly inspection.

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

Consultation with Employees  CSHO’s may consult with employees on matters of safety & health  Employees have a right to point out apparent OHSA violations to the CSHO

Complaints by Employees  Employees may file written complaints to OSHA  Complaint shown to employer no later than inspection date  Employees can request anonymity  Employer retaliation is prohibited

Inspection not warranted; informal review  Area Director determines if reasonable grounds exist for inspections resulting from employee complaints  An informal conference may be scheduled at the discretion of the Assistant Regional Director

Imminent danger  When CSHO finds, after an inspection, imminent danger, they will inform employers and employees of it  CSHO will recommend civil action to restrain such conditions or practices

Inspection Priorities  Imminent Danger, given top priority  Employees notify employer of imminent danger  If no action taken, notify OSHA

Inspection Priorities  Catastrophes and Fatal Accidents, given second priority

Inspection Priorities  Employee Complaints, Third priority  Referrals from employees & outside agencies of unsafe or unhealthful conditions  Informal review available for decisions not to inspect  Confidentiality is maintained on request

Inspection Priorities  Programmed High-Hazard Inspections, given fourth priority  Aimed at high hazard industries, occupations, or health substances  Selection criteria examples: Death Injury and illness incidence rate Exposure to toxic substances

Follow-up Inspections  Determines whether previously cited violations have been corrected.  “Notification of Failure to Abate” Failure to Abate

 1st; Imminent Danger  2nd; Catastrophes and Fatal Accidents  3rd; Employee Complaints and Referrals  4th; Programmed High-Hazard Inspections  5th; Follow-Up Inspections OSHA Inspection Priority Review

Inspection Process  Compliance Safety and Health Officer (CSHO) becomes familiar with facility  History  Nature of business  Relevant standards  IH equipment selection and PPE

Inspector’s Credentials  Inspection begins when CSHO arrives at facility  Displays credentials  Employers should always verify the identity of the CSHO  United States Department of Labor ID including photo and serial number  Employer should verify by phoning OSHA

Opening Conference  CSHO explains why facility was selected  Explains purpose of visit, inspection scope and applicable standards  Complaint copies distributed (if applicable)  Employee representative may be summoned

Inspection Tour  Route and duration determined by CSHO  Consults with employees  Photos  Instrument readings  Examine records

 CHSO will point out unsafe conditions observed & possible corrective action if employer requests  Some apparent violations can be corrected immediately and,  May still result in citation Inspection Tour

 Discussion of problems, questions and answers  Discussion of recommended citations  Time needed for abatement  Only Area Director issues citations and assess $$$ amounts Closing Conference

Citations  Area Director reviews CSHO’s inspection report  After the compliance officer reports findings, the area director determines what citations, if any will be issued, and what penalties, if any, will be proposed  Six month limit to issue citation following occurrence of alleged violation  Citations will describe particular violation of The Act, standards, etc..

Types of Violations  Other Than Serious Violation  Normally would not cause death or serious injury  Normally do not accompany fines  Adjusted downward as much as 95%, if fines are levied  Factors: Good faith History of violations Size of business

 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 Types of Violations

 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 Types of Violations

 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 corporation Corporate officers may be imprisoned Types of Violations

 Repeat Violation  Same or substantially similar, up to $ 70,000 for each violation Types of Violations

 Failure to Abate  Up to $ 7000/day for each violation not abated, for a maximum of 30 days Types of Violations

 De Minimis Violation  No direct relationship to safety or health  Least serious of all violations  Is recorded but not issued as a citation or fined Types of Violations

Additional 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

a 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

Proposed Penalties  Notice to employers of proposed penalties for citations issued  Penalties are final unless employer notifies Area Director (AD) in writing within 15 days  AD determines penalties based upon:  Size of business  Gravity of violation  Good faith of employer  History of previous violations

Posting of Citations  Citations posted unedited immediately at the location of the alleged violation  Posted for 3 working days or until the violation is abated, whichever is longer  Employer notice of contest can be posted alongside

Employer and employee contests  Notify Area Director in writing within 15 days of receipt of proposed penalty  Specify if: Contesting citation Contesting penalty Both  Employees can contest abatement time

Failure to correct violation  AD will notify employer of failure to correct and of additional penalties  Employer may appeal  Notification of failure to correct are final orders unless AD is notified in writing within 15 days

Abatement verification  The purpose of OHSA inspections:  Result in abatement of violations of the Act  Employer must certify to OSHA that violations have been abated within 10 days of the abatement date  The employer must inform affected employees and their representative(s) about abatement activities

Informal conferences  Employers can request an informal conference within 15 working days of the receipt of citations  Employee(s) may participate in the informal conference at the discretion of the Assistant Regional Director  Legal counsel allowed  Does not extend 15 day ‘Notice of Contest’ provisions

The End