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What To Do When OSHA Visits--NAEM EHS and Sustainability Managers Forum 2016

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We walk you through OSHA inspection do's and don'ts, help you understand the purpose of a visit from OSHA and the changing regulatory environment, learn about the necessity of proactive action during an inspection, and how to position your organization in the best possible light.

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What To Do When OSHA Visits--NAEM EHS and Sustainability Managers Forum 2016

  1. 1. What To Do When OSHA Visits Presented by Antea Group In association with NAEM
  2. 2. Learning Objectives INTRODUCTION  Inspection Do’s and Don’ts  Understand the purpose of a visit from OSHA and the changing regulatory environment  Learn about the necessity to take action as an employer during the course of an OSHA inspection  Position your organization in a favorable legal light 1Antea USA, Inc.
  3. 3. Do • Treat the compliance officer with respect and as a professional. • Be engaged! • Notify others. Make sure that members of the management team attend the opening and closing conferences. • Be honest • Gather the documents requested in a timely manner! Keys to a Smooth Inspection: Dos and Don’ts OSHA INSPECTION Antea USA, Inc. 2 • Correct potential hazards, as soon as possible, preferably while the compliance officer is in the facility. • Allow interviews, assist as requested in identifying the right person to be interviewed by the compliance officer. • Understand the inspection process - the compliance officer will explain the reason for the inspection and the process during an opening conference.
  4. 4. Antea USA, Inc.3
  5. 5. Don’t • Argue with the compliance officer. If you do not understand something, ask a question for clarification, but do not argue with the compliance officer. • Blame employees for safety issues or concerns. The compliance officer is identifying hazards, not placing blame. Blaming anyone during the inspection does not build trust or goodwill. OSHA INSPECTION Antea USA, Inc. 4 Keys to a Smooth Inspection: Dos and Don’ts • Accept blame for potential issues – just fix them. • Freely give information that is not requested. Provide only the information the compliance officer requests and show the compliance officer only areas of the facility that are requested.
  6. 6. What Is the Value of Staying One Step Ahead of OSHA? INTRODUCTION 5Antea USA, Inc.
  7. 7. OSHA Overview OSHA Inspections Employer’s Rights Strategic Pre-Planning
  8. 8. OSHA Overview – What’s Changing OSHA OVERVIEW 7Antea USA, Inc. New Direction New Legislation Aggressive Enforcement and Regulatory Focus Major New Directives Not Requiring Rulemaking Direct Final Rulemaking Far-reaching Penalty Directives Less Cooperation
  9. 9. • Expect an active regulatory agenda from the agencies for the remaining time of the current Administration • Many regulations having a direct impact on manufacturing – EPA, NLRB, OSHA, DOL, etc. • OSHA • Implemented rules on crystalline silica and injury & illness reporting • Pending combustible dust rules • Ramped up focus on injury emphasis program for temporary workers • Revisions to Injury & Illness Reporting • Electronic reporting • Searchable database Active Regulatory Agenda Antea USA, Inc. 8 Source www.osha.gov
  10. 10. Recent OSHA Budget Antea USA, Inc. 9 2014 Actual Budget 2015 Actual Budget 2017 Actual Budget 2017 Requested Budget $552.3 Million $552.8 Million $552.8 Million $595.0 Million OSHA requested an increase in the enforcement budget of $18 million to $226 million, 38% of the total OSHA budget is earmarked for enforcement
  11. 11. Enforcement OSHA OVERVIEW Aggressive Enforcement and Regulatory Focus Continues in 2016 • More inspectors • Higher penalties and publicity • More employers placed in the Severe Violators Enforcement Program (SVEP) The 2016 goal is to conduct 37,785; 29,943 safety inspections, and 7,842 health inspections This increase also reflects the agency’s shift in emphasis from safety inspections to health inspections 10Antea USA, Inc.
  12. 12. OSHA Overview OSHA Inspections Employer’s Rights Strategic Pre-Planning
  13. 13. Risk Based Nature of OSHA Inspections OSHA INSPECTIONS Triggers for an Inspection OSHA’s Response to a Complaint The Inspection Process OSHA Inspection and “Walk Around Process” 12Antea USA, Inc.
  14. 14. What Triggers an Inspection? OSHA INSPECTIONS 13Antea USA, Inc.  Imminent Danger  Fatality or Catastrophe  Complaint or Referral  Programmed Inspection  11 National Emphasis Programs  140 Local/Regional Emphasis Programs  Follow-up
  15. 15. OSHA Response to a Complaint OSHA INSPECTIONS Based on Potential Risk to Employees Low Risk Complaints – Call requesting response within 10 days Moderate Risk Complaints – Letter requesting response within 10 days High Risk Complaints – Always results in unannounced OSHA visit 14Antea USA, Inc.
  16. 16. • Opening Conference • Review of Documents • Facility Review – The “Walk Around” • Additional Monitoring Activities • Closing Conference Phases of an OSHA Inspection OSHA INSPECTIONS Antea USA, Inc. 15
  17. 17. • Verify the credentials of the compliance officer. • Determine the reason for the inspection and the scope of the inspection. • Set ground rules, safety equipment required in the facility. • Notify facility and corporate officials. • Listen and don’t volunteer information, the OSHA compliance officer will make requests for information that is desired. • Determine what will be the next steps of the inspection. Document review? Physical inspection? Opening Conference OSHA INSPECTIONS 16Antea USA, Inc.
  18. 18. The “Walk Around” OSHA INSPECTIONS 17Antea USA, Inc. Identify and document hazards Review records and programs Take photos, videos, instrument readings Interview employees Determine employee exposure Establish employer knowledge of condition
  19. 19. Things to Know OSHA INSPECTIONS 1. Legal Status – Inspection is subject to review and enforcement 2. Employees interviewed are potential witnesses 3. Photos and measurements are evidence that the hazards exist 4. Questions asked of management are to determine employer knowledge of the condition 5. Burden of Proof – OSHA 18Antea USA, Inc.
  20. 20. Closing Conference OSHA INSPECTIONS • Review of Inspection Findings • Abatement Options • Citation/Penalty • Posting Requirement • Informal Conference – 15 Working Days • Failure to Correct – Follow-up Inspections 19Antea USA, Inc.
  21. 21. Immediately Following an OSHA Inspection OSHA INSPECTION 20Antea USA, Inc. Follow-UpDe-Brief Correct Remaining Concerns and Document Improvement
  22. 22. OSHA Overview OSHA Inspections Employer’s Rights Strategic Pre-Planning
  23. 23. Employer’s Rights EMPLOYER’S RIGHTS What are an employer’s rights? How does the employer exercise them? 22Antea USA, Inc.
  24. 24. Employer’s Rights EMPLOYER’S RIGHTS 1. Requesting a search warrant – You can, but do you want to? 2. Trade secret protection for non employees 3. Right to have an employer representative or legal counsel present 4. Some control on employee representatives 5. Inform employees of their options during an interview 23Antea USA, Inc.
  25. 25.  Escort Compliance Officers  Take photographs and notes  Maintain focus  Manage employee interviews  Answer honestly but don’t speculate Stay in Charge EMPLOYER’S RIGHTS 24Antea USA, Inc.
  26. 26. Three B’s EMPLOYER’S RIGHTS Be Courteous! Be Alert! Be Quiet! 25Antea USA, Inc.
  27. 27. OHSA’s Burden of Proof EMPLOYER’S RIGHTS OSHA Must Show: 1. The applicability of the cited standard. 2. The employer’s noncompliance with the standard’s terms. 3. The potential injury or illness to the employee(s). 4. The employer’s actual or constructive knowledge of the violation. 5. The application of the General Duty Clause. 26Antea USA, Inc.
  28. 28. OSHA’s maximum penalties, which were last adjusted in 1990, increased by 78% on August 1, 2016. Any citations issued by OSHA after that date will be subject to the new penalties if the related violations occurred after November 2, 2015. Going forward, the agency will continue to adjust its penalties for inflation each year based on the Consumer Price Index. Citations and Penalties Antea USA, Inc. 27 Type of Violation Old Maximum Penalty New Maximum Penalty Serious Other-Than-Serious Posting Requirements $7,000 per violation $12,471 per violation Failure to Abate $7,000 per violation $12,471 per violation beyond the abatement date Willful or Repeat $70,000 per violation $124,709 per violation
  29. 29. Penalty Considerations/Severity of Penalties EMPLOYER’S RIGHTS  Employer Knowledge  Competent Inspection  Safety Culture  Written Safety Rules and Procedures  Training  Employer’s Discipline Policy  Safety Record  Accident and OSHA Violation History  Good Faith Shown by the Employer 28Antea USA, Inc.
  30. 30. We received citations. What do we do? Read the citations and related documents – immediately. Written Citations EMPLOYER’S RIGHTS Antea USA, Inc. 29
  31. 31. Written Citations EMPLOYER’S RIGHTS 1. Written Notice - Entire Inspection - Penalty Amount 2. Abatement Time 3. Citation Review 4. Post the Citations - In a prominent location, at or near the location of the alleged violation 5. Settlement Options 30Antea USA, Inc.
  32. 32.  What requires improvement  Equipment  Process  Procedures  Training  When will the improvement be made  Who will complete the improvement  Document the improvements Abatement Plan EMPLOYER’S RIGHTS 31Antea USA, Inc. Plan Do Check Act
  33. 33. • First, pay attention to the date of the citation(s). A response must be sent within 15 business days or the citations and penalties become final. • Second, do not simply accept and pay the citation. Consult with your team and evaluate settlement alternatives. OSHA Citation Settlement Options EMPLOYER’S RIGHTS Antea USA, Inc. 32 • OSHA offers an informal settlement process where citations and penalties can be negotiated and in some cases removed. • Formal Contest of the citations which is a legal process and a hearing before a administrative law judge. • Decide on the next step but do not delay. Remember the 15 day limit.
  34. 34. OSHA Overview OSHA Inspections Employer’s Rights Strategic Pre-Planning
  35. 35. Strategic Pre-Planning STRATEGIC PRE-PLANNING As employers, how can we prepare for, manage and mitigate incidents which may affect our business, operations, customers and brand? 34Antea USA, Inc.
  36. 36. Strategic Pre-Planning STRATEGIC PRE-PLANNING 35Antea USA, Inc. The Benefits of Strategic Pre-Planning Establishing a Trained OSHA Inspection Team  Identify  Inspection Protocol  Post-Inspection Meeting
  37. 37. OSHA Response Plan Development STRATEGIC PRE-PLANNING 36Antea USA, Inc. Utilize your resources…
  38. 38. OSHA Response Plan Development STRATEGIC PRE-PLANNING 37Antea USA, Inc. Develop a Response Plan…
  39. 39. Be Prepared and Proactive – Don’t wait for the “knock at the door” • Develop a Plan • Respond Quickly • Have a Strong Health and Safety Process • Develop a Culture of Safety • Good, Safe Equipment Design • Effective Training Summary Antea USA, Inc. 38
  40. 40.  Proactive vs. Reactive  Reduction in injury and illness rates  Evaluated by companies when selecting partners  Ensure ability to bid jobs and remain active on jobs  Reduce workers’ compensation rates  Improved employee morale  Positive impact on the bottom line Benefits for Your Organization 39Antea USA, Inc. STRATEGIC PRE-PLANNING
  41. 41. Questions and Answers Antea USA, Inc. 40 PresenterContact Information: Chris Brossia MS, CIH, CSP, CHMM Antea Group Senior Consultant Direct + 1 970 308 2618 Chris.brossia@anteagroup.com
  42. 42. B E T T E R B U S I N E S S , B E T T E R W O R L D℠ Thank you! AnteaUSA Headquarters 5910 Rice Creek Parkway,Suite 100 St. Paul, MN 55126, USA USA Toll Free: +1 800 477 7411 International: +1 651 639 9443 www.anteagroup.com
  43. 43. Chris Brossia, MS, CIH, CSP, CHMM, Antea Group Presenter Chris Brossia, Consultant, has more than 20 years of experience in Risk Management and Environmental, Health and Safety. His technical specialties include ergonomics, industrial hygiene, safety culture/leadership, compliance programs, global health and safety management systems, manufacturing systems, research & development, pharmaceutical containment and workers’ compensation. Contact Information: chris.brossia@anteagroup.com; mobile phone 970 308 2618. 42Antea USA, Inc.