Amid the COVID-19 pandemic, many employers face difficult decisions regarding business operations. Decreased product demand, staff shortages, and ever-changing regulations are just some of the challenges employers are facing. Do employers also need to be worried about a surprise state safety inspection?
Occupational Safety and Health Administration (OSHA), Washington Labor & Industries, and Oregon OSHA have all announced safety directives for employers, whether they have employees working now or will be returning workers in the coming weeks. At a minimum, employers need to have an Infectious Disease Preparedness & Response Plan that includes procedures for sick employees and educates employees on COVID-19 workplace hazards. Employers must also enforce physical distancing practices when possible, ensure sufficient handwashing stations (and encourage frequent hand washing), and provide routine workplace cleaning and sanitation. If employees feel that their employer is violating these mandatory requirements or is exposing workers to COVID-19 or other safety hazards, employees have the right to make a workplace complaint or request a worksite safety inspection from their state safety agency. Employees also have the right to make a workplace complaint without the fear of retaliation from their employer. This complaint may prompt a workplace safety and health investigation.
The federal and state directives include interim enforcement response plans for addressing COVID-19 in the workplace. The plans contain instructions and guidance to federal and state area offices and compliance safety and health officers (CSHOs) for handling COVID-19 related complaints, referrals, and severe illness reports. The scope of the guidance covers all investigations and inspections specifically related to the workplace hazards associated with the current COVID-19 pandemic. The response plan outlines procedures for addressing reports of COVID-19-related to workplace hazards. Fatalities and imminent danger exposures related to COVID-19 will be prioritized for on-site inspections. The response plans include procedures and sample documentation for inspectors to use during COVID-19-related inspections.
Whether or not an employee complaint prompts an inspection, it may be helpful to understand the different types of inspections and the inspection process.
There are two different types of safety inspections, consultation, and compliance.
A consultation inspection is part of the consultation services that are offered through the state, or federally if the state does not have a program. Consultation services are confidential, no cost, and provide professional advice and assistance. The consultation inspection is designed to help employers be proactive in identifying and fixing workplace hazards, developing safety and health programs, and training employees. There are no citations for safety hazards identified during the consultation inspection process; however, employers are obligated to correct unsafe or unhealthy working conditions within a reasonable period.
A compliance inspection typically occurs without advance notice to employers. Although these inspections are unannounced, employers do have the right to require compliance officers to obtain an inspection warrant before entering the worksite. Depending on the situation, an employer may retain a lawyer if they wish. Safety and health officers are experienced, well-trained industrial hygienists and safety professionals whose goal is to assure compliance requirements and help reduce workplace injuries, illnesses, and fatalities. Inspection resources are prioritized based on the most hazardous workplaces and the severity of a complaint:
- Imminent danger situations – Hazards that could cause serious physical harm or death
- Severe injuries and illnesses – Employers must report:
• All work-related fatalities within 8 hours
• All work-related inpatient hospitalizations, amputations, or losses of an eye within 24 hours
- Worker complaints – Employees can anonymously file a workplace safety complaint
- Referrals – Other agencies or organizations make recommendations
- Target inspections – High hazard industries or workplaces that have more than average injuries or illnesses
- Follow-up inspections – Checking on abatement of violations cited during previous inspections
For lower-priority hazards, compliance officers may reach out by phone or fax, and employers must respond in writing within five working days identifying issues and corrective actions taken or planned. If the officers determine the response is adequate, there will typically not be an on-site inspection.
The Inspection Process
Preparation – Before the inspection, compliance officers will research the inspection history of a worksite using various resources and the most likely safety standards that apply to the inspected business.
Presentation of Credentials – The compliance officer should present credentials with both a photograph and serial number.
Opening Conference – The compliance officers will explain why the workplace was selected for inspection, the scope of the inspection, walkaround procedures, employee representation, and the employee interview process.
Walkaround – Following the opening conference, the inspection is conducted with the compliance officers and the employer representatives. The officer will review hazard categories, identifying the need for any improvements. The officers may request records, training information, and written programs as well as review that employers have required workplace posters.
Interviews – Compliance officers may request employee interviews (both management and non-management employees) to gather facts about possible violations of agency regulations. Typical questions will address work procedures, emergency procedures, and personal protective equipment. Employees have the right to a private interview with the compliance officer, or they can choose to have a person of their choice attend the interview with them. However, the employee also has the right to refuse to be interviewed by the officer. Employees who are interviewed are protected from employer retaliation.
Closing Conference – A closing conference ends the inspection. Findings are discussed with possible courses of action that the employer can take following the inspection, which could include an informal conference with the agency or contesting citations and proposed penalties.
Penalties – Citations and penalties must be issued within six months of violation occurrences, and deadlines for correcting the alleged hazard must be determined. OSHA and state agencies have a policy of reducing penalties for small employers and those acting in good faith. No good faith adjustment will be made for alleged willful violations.
Appeals – Employers have an opportunity for an informal conference with the agency to discuss citations, penalties, abatement dates, or any other information pertinent to the inspection. The agency and the employer may work out a settlement agreement to resolve the matter and to eliminate the hazard. The primary goal of OSHA and state agencies is to correct hazards and keep people safe rather than issuing citations or collecting penalties.
Archbright members aren’t alone when dealing with workplace hazards or compliance inspections. Eligible members are encouraged to call the Archbright Safety Hotline with specific questions or to seek clarification on existing or new requirements. Our Safety Consulting Services include mock-compliance inspections that help members target workplace hazards and prevent or prepare for workplace inspections, COVID-19 related or not. Our Legal and Safety experts advise members through the compliance inspection process and assist if citations are issued. For more information about our services, contact us today!