Lobb & Plewe Attorneys At Law

Look out business owners, here comes OSHA

Businesses have been put on notice that, once a group of 76 new inspectors are trained, OSHA plans to inspect more businesses for jobsite safety violations.

U.S. Secretary Alexander Acosta in April personally informed a House Appropriations subcommittee that OSHA inspections will become more frequent than they currently are.

The hiring freeze President Trump placed on the federal government early in his administration has been lifted. Newly hired OSHA inspectors should start visiting workplaces within one to three years.

Sending new inspectors to job sites stands in contrast to the Administration’s earlier approach, which was to issue “shaming press releases” that were harsh in tone and accused negligent construction firms of being indifferent to worker safety.

That approach proved counterproductive, angering businesses subjected to the public spotlight. OSHA has since pulled back on the approach, recommending to businesses that they work with the agency to develop effective policies.

While OSHA may have toned down its voice, it has continued to impose significant monetary penalties for noncompliance. Companies tagged with $1 million or higher penalties are additionally placed in its Severe Violator Program, which keeps an even closer eye on these companies.

The numbers show that businesses are right to be concerned about OSHA’s aggressiveness. Acosta informed the subcommittee that the agency had conducted 32,000 inspections in both 2017 and 2018 -- both increases over 2016.

Businesses should not expect OSHA to back off under the Trump Administration. President Trump has requested $557 million for the agency in his 2020 budget request. That’s an increase from the previous year, with new funding going to new staff -- including 30 additional compliance officers and five additional whistleblower investigators.

If you learn that your business is subject to OSHA investigations, know that:

  1. You probably won’t know in advance that OSHA is coming. Investigators can show up at your door with no warning. There are exceptions to this, such as when the business is classified as a high-hazard type. If a workplace situation poses an immediate danger to workers, OSHA will let you know they are coming.
  2. Your response must be rapid. If OSHA makes an inquiry, you are expected to answer in five days or less. It is good to have your business attorney aware of the inspection, to help you craft your response.
  3. Inspection should not be the end of the world. OSHA goes to considerable lengths not to frighten or bully employers. Their goal is to make the investigative process as open and transparent. They will let you accompany them as they inspect the worksite. Your goal is to be cooperative. Assist them in their inquiries without getting defensive, and definitely without misleading.
  4. Along these lines, you will be expected to provide injury and illness logs going back three years or more. Employers should also be ready to produce PPE (personal protective equipment) hazard assessments covering the previous five years, and action and communications plans for emergency response.
  5. When the investigation is complete, an OSHA compliance officer will meet with the employer and employee representative. Discussion topics will include findings of the investigation, violations of OSHA regulations, fines, if there are any, and deadlines for making things right.

Remember, investigations don’t come out of the blue. In most cases, they are triggered by a report from an employee or referred by another agency. Keeping your company’s name out of a negative TV or newspaper report is also key to staying out of OSHA’s crosshairs.  

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