Welcome to the final installment of our blog series on OSHA Inspections!
If you’re just joining us, you can catch up on Parts I through III here:
If you’re a fan of our OSHA Inspection series, stay tuned for the ebook – a comprehensive resource with all the great information from our blog series in a handy, easily accessible format.
The information for this series was gathered through several interviews with Rick Kaletsky, a safety consultant who spent 20 years with OSHA as a Compliance Officer and Assistant Area Director. Drawing on his 47 years of experience, Kaletsky takes us through the steps involved in navigating the closing conference and what options are available once citations are issued.
In most circumstances, the closing conference will happen directly after the walkaround has been completed. There are some exceptions; if there is a substantial list of violations and the compliance officer would like to review his or her notes, the conference may be put off until the following day.
While it is up to the compliance officer, you are well within your rights to request a delay in the closing conference. There isn’t usually any strategic benefit to having the conference delayed (at most, you will only receive a day or two) unless you feel that taking time to review your notes will provide an advantage. One situation where it may be advantageous is if a certain employee or expert could help your case but they aren’t on-site; otherwise, it’s not going to be a detriment to go directly into the closing conference.
Much like the opening conference, you will want to ensure you have a quiet, comfortable space for the closing conference where there is plenty of seating and space for people to write. If your facility doesn’t have somewhere like this that can accommodate everyone, consider having an off-site venue available.
In the closing conference, the compliance officer will go over, in detail, the apparent violations and what is likely to be recommended for citation. You read that correctly. The compliance officer does not have the authority to cite you for any violations – that job falls under the authority of the area director (or state counterpart).
While nothing is official at this point, make sure you completely understand the violations that the compliance officer is discussing. It is the compliance officer’s job to make sure you are aware of all hazards being recommended for citation, which OSHA standards may apply, and what is required to abate the violation.
During the closing conference, you are not only within your rights to defend yourself, but also are encouraged to do so. This may be your last chance to explain mitigating circumstances or to put forth respectful arguments against citation before you could be cited for a violation. By all means defend yourself to the best of your ability without getting belligerent or argumentative. If you disagree with the compliance officer’s assessment, make sure your counterpoints are written down and included as part of the final report.
Click here to review the top 10 standards most frequently cited by OSHA.
Once the apparent violations have been discussed, the next step is to set the timelines for abatement (the time it will take to remove the hazard). The compliance officer will want to work with you to set appropriate dates, so this is not the time to be unreasonable. The compliance officer will always have the last say on the abatement dates; giving helpful, realistic timelines will increase your chances of receiving favorable abatement dates.
Abatement dates are not set in stone – it is possible to receive extensions. To receive an extension, you must show that you are diligently trying to abate the hazard and simply need more time, and you must apply for the extension in a reasonable time frame, e.g. not the day after the abatement period expires.
For instance, if abatement requires new parts for a machine and you ordered those parts a day after the citation arrived, but the shipment was delayed and won’t arrive in time, you should receive an extension. Conversely, if your rationale for needing an extension is that the electrician you hired can’t make it in time, but it turns out you waited until the day before the expiration of the abatement period to contact the electrician, you will likely not receive an extension.
If citations are to be issued (remember, it is up to the area director to make that decision, not the compliance officer) you will receive the citation(s) by registered mail. Once you, or a representative, sign for the package, you have 15 working days (excluding weekends and federal holidays) to contest the citation(s).
The citation(s) will include a reference to the relevant standard of the Occupational Safety and Health Act as well as a description of, for instance, the particular unsafe equipment or act, and the classification (more on this in the next section).
Once you receive the citation(s), you must post each page of the citation near the apparent violation. If there are several machines impacted, the citation must be posted in view of each. The posting must remain up for three days or until abated, whichever is longer.
For each violation, a penalty may be proposed based on severity, probability, and other factors.
For instance, a hazard that is likely to lead to serious injury and has a high probability of occurrence will result in a higher penalty than something unlikely to cause much harm with a low probability of occurrence. The employer’s knowledge of the hazard also plays a role – having knowledge of a hazard and doing nothing about it will result in a more serious penalty than a hazard the employer could not have known about.
The most serious and the one you want to avoid at all costs – in fact, some companies will accept a higher financial penalty to have a willful classification changed to serious to avoid the negative perception. A willful classification essentially means the employer had specific, clear knowledge of the hazard and allowed it to remain, and exhibited purposeful disregard or showed plain indifference.
This can be as serious as a willful classification. It refers to a hazard for which the company has been cited and abated, and now that same situation (or a substantially similar situation) has occurred again. This differs from failure to abate, which is discussed below.
With serious violations, OSHA must prove that there is substantial probability that death or serious physical harm could result. Serious harm, according to OSHA, can fall under either of two categories:
- Impairment of the body in which part of the body is made functionally useless or is substantially reduced in efficiency on or off the job. Such impairment may be permanent or temporary, chronic or acute. Injuries involving such impairment would usually require treatment by a medical doctor.
- Illnesses that could shorten life or significantly reduce physical or mental efficiency by inhibiting the normal function of a part of the body.
The other classification is for violations that are not likely to result in death or serious harm. This is typically designated for hazards that need to be abated, but don’t realistically pose a serious threat.
Failure to Abate
If you did not abate the hazard within the abatement period, you will receive a failure to abate classification. Depending on the circumstances, this could be quite serious and costly.
Contest and Informal Conference
OSHA’s word is not final. If you do not agree with the citations your company received, you are well within your rights to contest. Keep in mind, you only have 15 working days from the time you receive the citations to contest.
When you contest, your appeal will be taken up by the Occupational Safety and Health Review Commission, an independent agency with no connection to OSHA. It is no longer in OSHA’s hands and OSHA will no longer have any contact with you – this is very important if you would like to work towards a settlement.
There is no such thing as a partial settlement – you can’t contest certain citations and then try to settle others; it’s all or nothing. However, if you are planning to contest, it’s a good idea to request an informal conference first.
An informal conference can be requested at any time during the 15-day contest period, but it is best to do so as soon as possible as the contest period will not be extended simply because the informal conference has yet to happen. It is paramount to keep in mind that the informal conference must be held, not simply scheduled, during the 15-day contest period. Waiting until the last day of the contest period to schedule the informal conference will practically ensure you miss your opportunity.
During the informal conference, OSHA is authorized to reduce penalties, change classifications, and even delete items altogether. It’s imperative that you put your best foot forward at this conference and Kaletsky recommends having a safety consultant attend to help present your interests in the best light possible (if you’re looking to hire a safety consultant, Kaletsky’s contact info is provided at the end of this article).
If an informal settlement agreement is agreed upon (in his book, Kaletsky presents several strategies to help tilt the agreement in your favor), then that is the final decision and it is binding. After reaching a settlement agreement, you cannot then contest the citations – you have waived that right. Similarly, OSHA will not engage in an informal conference if you have contested. It is possible to rescind a contest if you decide after filing that you want to try to reach a settlement instead and can then re-file if a settlement is unreachable.
When it comes to dealing with an OSHA inspection, preparation is definitely your best defense. Understanding the process, knowing your rights, and having a plan in place before OSHA knocks on the door, are all key to helping produce the best possible outcome.
For a comprehensive resource on preparing for OSHA inspections, please click here to purchase Kaletsky’s book:
Rick Kaletsky has over 47 years experience in the safety industry, including 26 as a safety consultant. Please use the contact info below to find out more about his services:
This blog does not constitute legal advice. To determine your rights and obligations under the Occupational Safety and Health Act and its regulations, please contact your legal counsel or refer to the legislation.