Written by Keven Yarbrough, COSS
If you are like other company owners who’ve endured the OSHA experience, you were first glad it was over, then angry that you didn’t do more. Then you receive citations in the mail and you can’t believe your eyes, you were cited!
Why are the penalties so high; how did the compliance officer find so many violations, what was he looking for? Why did he ask my employees and me so many questions? Why is the inspection process so mysterious?
Permit me to shed some light on the investigative process and what I understand to be the elements necessary to document a legally sufficient citation.
OSHA compliance officers also know, as “CSHO’s” are highly educated well-trained investigators. No OSHA inspection should be taken lightly or dismissed off hand. If you fail to meet OSHA’s minimum requirements the compliance officer will spot the deficiencies and address them. Deficiencies may and probably will result in citations and costly penalties. However, knowing your rights and understanding the inspection process will help to demystify the inspection process and may help you avoid those unwanted citations.
Now lets get started and consider the following. There are 5 elements that must exist, and must document before the CSHO can recommend a citation, and they must exist at the same time, they are:
1. A hazard. This may be a hazardous condition, a hazardous operation or dangerous or unsafe equipment. The CSHO must document the situation, the equipment or tool right down to the serial number and location.
2. An OSHA Standard. There must be an OSHA standard that addresses the hazard. The CSHO must document how the hazard violates the terms of the standard. Remember however; in the absence of a specific standard the compliance officer may choose to cite OSHA’s General Duty Clause commonly know as Section 5(a)(1) of the OSH Act. In short the general duty clause states the following:
SEC. 5. Duties
(a) Each employer — (1) shall furnish to each of 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; In other words it is the employers responsibility to maintain a safe work place.
3. The 3rd element must show how the terms of the standard were violated. The compliance officer must document which part of the standard was violated. He will offer evidence in terms of photographs, measurements or sampling data that demonstrates a failure to meet the standard. When the CSHO arrives at your facility he will be armed with a camera, tape measure and note pad. He’ll take photos, measurements and annotate every aspect of the inspection; you should too!
4. The 4th element is Employee Exposure; the CSHO has to prove that an employee was exposed. In order to propose a citation the CSHO must prove that an employee was exposed to a violative condition. If the CSHO cannot show employee exposure no citation may be issued. To demonstrate employee exposure the CSHO will take photos; interview you and your employees’. All interviews between the CSHO and your employees are conducted in private unless the employees request representation. The CSHO’s questions may sound something like this;
When was the last time you were on that scaffold? What work were you doing? How long were you working on the scaffold? Did you notice that this scaffold is missing guardrails? How long were the guardrails missing? How high is this scaffold? What could happen to you if you fall?
You can tell by the questions asked the CSHO is documenting the fact that the employee was not only exposed to a fall hazard he’s also verifying how long the employee was exposed to the hazard and how long the hazard existed, important information to strengthen the citation. After talking to your employees the next person he will interview is you. He’ll ask you the same questions he asked your employees then compare then. What’s your story?
5. The 5th and final element of a citation and in my opinion the most critical is Employer Knowledge. Employer Knowledge simply means that the employer or his representives i.e. the lead men, foremen, superintendent, plant manager, warehouse manager or the like knew or could have know of the hazardous condition but failed to correct it. In most cases OSHA considers any employee acting in a management role management this can satisfy the employer knowledge requirement.
The CSHO may ask you or your employees questions like; are you in charge if not, who is and when was the last time he inspected the site? At this time you may be tempted to say you haven’t inspected the site just remember that for construction sites OSHA standard [CFR 1926.20(b)(2)] requires that management conduct frequent and regular inspections of the job sites, materials, and equipment by competent person designated by the employers. The wrong answers to CSHO’s questions are often enough to document employer knowledge, if not the CSHO cannot recommend a citation. It has been my experience that OSHA citations are issued because of what the employees said of failed to say or for what management did or fails to do. To avoid unassay citations and penalties inspect your facility frequently and regularly. When you identify safety issues correct them immediately.
To document a citation the compliance officer must establish the elements that form the foundation of all citations; CSHO’s don’t recommend citations arbitrarily, or at least he shouldn’t! To recap, the elements are:
1. A hazard must exist.
2. There must be a standard that addresses the hazard (don’t forget about Sec. 5(a)(1) general duty clause of the OSH Act.)
3. The terms of the standard must be violated.
4. There must be employee exposure to the hazard and;
5. The employer must have knowledge of the violative condition.
I hope this brief explanation of “The Anatomy of an OSHA Citation” was helpful. The next time you are the lucky, or unlucky recipient of an OSHA inspection, you will be armed with inside knowledge of the inspection process.
Remember, “Safety may not be most important but it’s always important.”
Written by Keven Yarbrough, COSS
Yarbrough Safety Solutions Inc
Author, Speaker, Owner