To enforce its standards, OSHA is authorized to conduct workplace inspections. Every establishment covered by the act is subject to inspection by OSHA compliance safety and health officers, who are chosen for their knowledge and experience in the occupational safety and health field.
Compliance officers are vigorously trained in OSHA standards and in recognition of safety and health hazards. Similarly, states with their own occupational safety and health programs conduct inspections using qualified compliance safety and health officers.
Under the act, “upon presenting appropriate credentials to the owner, operator or agent in charge,” an OSHA compliance officer is authorized to:
- “Enter without delay and at reasonable times any factory, plant, establishment, construction site or other areas, workplace or environment where work is performed by an employee of an employer” and to
- “Inspect and investigate during regular working hours, and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment and materials therein, and to question privately any such employer, owner, operator, agent or employee.”
Inspections are conducted without advance notice. There are, however, special circumstances under which OSHA may indeed give notice to the employer, but even then, such a notice will be less than 24 hours. These special circumstances include:
- Imminent danger situations which require correction as soon as possible;
- Inspections that must take place after regular business hours, or that require special preparation;
- Cases where notice is required to ensure that the employer and employee representative or other personnel will be present; and/or
- Situations in which the OSHA area director determines that an advance notice would produce a more thorough or effective inspection.
Employers receiving advance notice of an inspection must inform their employees’ representative or arrange for OSHA to do so.
If an employer refuses to admit an OSHA compliance officer, or if an employer attempts to interfere with the inspection, the Act permits appropriate legal action.
Based on a 1978 Supreme Court ruling (Marshall vs. Barlow’s Inc.), OSHA may not conduct warrantless inspections without an employer’s consent. It may, however, conduct an inspection after obtaining the required judicially authorized search warrant based upon administrative probable cause or upon evidence of a violation.
Obviously, not all six million workplaces covered by the Act can be inspected immediately. The worst situations need attention first. Therefore, OSHA has established a system of inspection priorities.
Imminent danger situations are given top priority. An imminent danger is any condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately, or before the danger can be eliminated through normal enforcement procedures.
Serious physical harm is any type of harm that could cause permanent or prolonged damage to the body or which, while not damaging the body on a prolonged basis, could cause such temporary disability as to require in-patient hospital treatment.
OSHA considers that “permanent or prolonged damage” has occurred when, for example, a part of the body is crushed or severed; an arm, leg or finger is amputated; or sight in one or both eyes is lost.
This kind of damage also includes that which renders a part of the body either functionally useless or substantially reduced in efficiency on or off the job. An example: bones in a limb shattered so severely that mobility or dexterity will be permanently reduced.
Temporary disability requiring in-patient hospital treatment includes injuries such as simple fractures, concussions, burns, or wounds involving substantial loss of blood and requiring extensive suturing or other healing aids.
Injuries or illnesses that are difficult to observe are classified as serious if they inhibit a person’s ability to perform normal functions, cause reductions in physical or mental efficiency, or shorten life.
Health hazards may constitute imminent danger situations when they present a serious and immediate threat to life or health.
For a health hazard to be considered an imminent danger, there must be a reasonable expectation that (1) toxic substances such as dangerous fumes, dusts or gases are present, and (2) exposure to them will cause immediate and irreversible harm to such a degree as to shorten life or cause a reduction in physical or mental efficiency, even though the resulting harm is not immediately apparent.
Employees should inform the supervisor or employer immediately if they detect–or even suspect–an imminent danger situation in the workplace.
If the employer takes no action to eliminate the danger, an employee or the authorized employee representative may notify the nearest OSHA office and request an inspection.
The request should identify the workplace location, detail the hazard or condition and include the employee’s name, address and telephone number.
Although the employer has the right to see a copy of the complaint if there is an inspection, the name of the employee will be withheld if the employee so requests.
The OSHA area director will review the information and immediately determine whether there is a reasonable basis for the allegation.
If it is decided the case has merit, the area director will assign a compliance officer to conduct an immediate inspection of the workplace.
If an imminent danger situation is found, upon inspection, the compliance officer will ask the employer to voluntarily abate the hazard and to remove endangered employees from exposure.
Should the employer fail to do this, OSHA, through the regional solicitor, may apply to the nearest Federal District Court for appropriate legal action to correct the situation.
Before the OSHA inspector leaves the workplace, he or she will advise all affected employees of the hazard and post an imminent danger notice. Judicial action can produce a temporary restraining order (immediate shutdown) of the operation or section of the workplace where the imminent danger exists.
Should OSHA “arbitrarily or capriciously” decline to bring court action, the affected employees may sue the Secretary of Labor to compel the Secretary to do so.
Walking off the job because of potentially unsafe workplace conditions is not ordinarily an employee right. To do so may result in disciplinary action by the employer. However, an employee does have the right to refuse (in good faith) to be exposed to imminent danger. OSHA rules protect employees from discrimination if:
- Where possible, he or she asked the employer to eliminate the danger, and the employer failed to do so;
- The danger facing the employee is so grave that a “reasonable person” in the same situation would conclude there is a real danger of death or serious physical harm; or
- The danger is so imminent that there is not sufficient time to have the danger eliminated through normal enforcement procedures; and
- The employee has no reasonable alternative to refusing to work under these conditions (e.g. asking for reassignment to another area).
Catastrophes and Fatal Accidents
Second priority is given to investigation of fatalities and catastrophes resulting in hospitalization of three or more employees. Such situations must be reported to OSHA by the employer within eight hours. Investigations are conducted to determine if OSHA standards were violated and to avoid recurrence of similar accidents.
Third priority is given to employee complaints of alleged violations of standards or of unsafe or unhealthy working conditions. Also included in this category are serious referrals of unsafe or unhealthy working conditions from other sources, such as local or state agencies or departments.
The Act gives each employee the right to request an OSHA inspection when the employee feels he or she is in imminent danger from a hazard or when he or she feels that there is a violation of an OSHA standard that threatens physical harm.
If requested, OSHA will maintain confidentiality, will inform the employee of any action it takes regarding the complaint and, will hold an informal review of any decision not to inspect. Just as in situations of imminent danger, the employee’s name will be withheld from the employer, if the employee so requests.
Programmed High-Hazard Inspections
Next in priority are programmed, or planned, inspections aimed at specific high-hazard industries, occupations or health substances. Industries are selected for inspection on the basis of factors such as the death, injury and illness incidence rates, and employee exposure to toxic substances.
Special emphasis may be regional or national in scope, depending on the distribution of the workplaces involved. States with their own occupational safety and health programs may use somewhat different systems to identify high-hazard industries for inspection.
A follow-up inspection determines whether previously cited violations have been corrected. If an employer has failed to abate a violation, the compliance officer informs the employer that he/she is subject to “Notification of Failure to Abate” alleged violation and may face additional proposed daily penalties while such failures or violations continue.
Prior to inspection, the compliance officer will become familiar with as many relevant facts as possible about the workplace, taking into account such things as the history of the establishment, the nature of the business, and the particular standards likely to apply. Preparing for the inspection also involves selecting appropriate equipment for detecting and measuring fumes, gases, toxic substances, noise, etc.
An inspection begins when the OSHA compliance officer arrives at the establishment. He or she displays official credentials and asks to meet an appropriate employer representative. Employers should always insist upon seeing the compliance officer’s credentials.
An OSHA compliance officer carries U.S. Department of Labor credentials bearing his or her photograph and a serial number that can be verified by phoning the nearest OSHA office.
Anyone who tries to collect a penalty at the time of inspection or promotes the sale of a product or service at any time, is not a OSHA compliance officer.
Posing as a compliance officer is a violation of law; suspected impostors should be promptly reported to local law enforcement agencies and to OSHA.
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