Hilda Solis delivered a powerful message to U.S. industry when she took over as Secretary of Labor for the Obama Administration. Her message: “There is a new sheriff in town.”

As “sheriff,” she promised to aggressively enforce the laws spelled out by the Occupational Safety and Health Administration (OSHA).

Businesses are already paying the price — literally — in this enhanced commitment to enforce OSHA mandates, says Mark Lies, a labor and employment law attorney at Chicago-based Seyfarth Shaw LLC.

According to figures released for Fiscal Year (FY) 2010, OSHA conducted more than 41,000 inspections — a 15-year high and a five percent increase over FY 2009. OSHA also issued more than 94,000 citations, a seven percent increase over 2009, and the highest number of citations in nearly two decades.

OSHA is also levying stiffer penalties. The average fine for a serious violation rose by six percent in FY 2010, while the number of significant cases — those with fines totaling more than $100,000 — increased by 37 percent.

Where OSHA is involved, it pays to pay attention. Fortunately, there are a variety of ways to prepare if companies know what to expect when OSHA comes calling, says Lies.

Top Reasons for Visits
When OSHA shows up they must have what’s known as probable cause to conduct an inspection.

What constitutes probable cause?
•    A confidential employee complaint. OSHA will provide a copy of the confidential complaint but will not divulge the name of the employee making the complaint.

•    A fatality or accident (called a catastrophe) serious enough to put three or more employees in the hospital for treatment. OSHA gives employers eight hours to report a fatality or catastrophe.

•    A program inspection where OSHA decides to inspect a certain sector of business or a particular hazard. For instance, they notice a number of injuries involving forklifts in the Milwaukee area, so they start visiting area companies operating forklifts.

But will you know they’re coming in advance? Probably not, according to an e-mail correspondence from the OSHA Office of Communications.

“Normally OSHA conducts enforcement inspections without advance notice,” writes OSHA communications professional Kimberly Tucker. “The agency cannot inspect all seven million workplaces under its jurisdiction. OSHA focuses its enforcement inspection resources on the most hazardous workplaces and conducts enforcement inspections based on imminent danger situations; catastrophes and fatalities; complaints; referrals; follow-ups; and planned and programmed investigations.”

Common Citations
The reality is that if companies fail to meet OSHA mandates, the organization may force them to comply through citations and penalties.

And when citations are issued, the penalties can be severe — price tags that once ran as high as $7,500 to $8,500 for groups of citations can now add up to $25,000+, according to Lies. In Willful violations, in which the company knew of a hazard and intentionally failed to fix it, penalties may rise to $70,000. Repeat violations pack large financial penalties as well, up to $70,000 per citation. If a company pays a penalty and fixes the problem, but violates the same regulation again within five years, the penalty for a Repeat violation may be up to $70,000. And, for those companies receiving a citation and failing to address the problem at all, a Failure-to-Abate citation may be issued. In those cases, OSHA may tack on a $5,000 per day penalty.

The best offense to this is a good defense; companies can and should address likely areas of concern before inspection, says Lies.

Companies can better protect themselves by keeping an accurate OSHA 300 of all reported illnesses and accidents. During a visit, an OSHA compliance officer will ask to see the Logs so it’s important to keep them up to date.

Companies also can reduce risk by developing areas to inspect daily, weekly or monthly and training employees to perform these inspections to ensure they’re in compliance.

When determining which areas to inspect regularly, it might help to consider the Top 10 regulations cited by OSHA in 2010, which include:

1.    Scaffolding,
2.    Fall Protection,
3.    Hazard Communication,
4.    Respiratory Protection,
5.    Ladders,
6.    Lockout/Tagout,
7.    Electrical, Wiring Methods,
8.    Powered Industrial Trucks,
9.    Electrical, General Requirements, and
10.    Machine Guarding.

No Guarantees
Advance preparation doesn’t guarantee OSHA will never come calling, but it helps a company prepare for the possibility.

“Select a point person who will be responsible for dealing with OSHA inspectors and make sure that position is covered should that individual be on vacation or ill,” says Lies.
Train this employee on what to expect and what to do when OSHA arrives. “They need to understand the inspection process,” says Lies.

An OSHA compliance officer must display appropriate credentials and ask to meet with the employer representative. The company’s point person should bring them into a conference room and ask for the reason for their inspection. If the OSHA inspection is a result of a fatality, employee injury or a significant accident, a company should consider immediately retaining an attorney experienced in OSHA law.

The next step is to determine the inspection’s intended scope, which should be limited to the complaint or hazard at hand. “They should be taken by the most direct route to the area they wish to see,” says Lies. “If the machine is in the very back of the plant, for example, you walk outside the plant, through the parking lot and come into the door next to that machine. You don’t walk them through the entire plant because they can cite any hazard they see in plain view and talk to every employee who wants to speak to the inspector.”

The inspector can also ask to review specific paperwork but a company need only provide the documents in question. “They may ask for documents they are not entitled to,” says Lies, who recommends asking the inspector to put his or her request in writing then having an attorney review which documents to turn over.

After the inspection concludes, a closing conference informs the employer representative of any unsafe or unhealthy working conditions and looks at possible corrective actions. No citations are issued at the conference; OSHA has up to six months to issue citations from the last time the hazard existed.

When an employer receives a citation, OSHA gives the company 15 working days to take action. The company can accept the citation, fix the violation and pay the penalty, it can reach a settlement with the agency or it can contest the violation by mailing or faxing OSHA within the 15 working days a letter of contest requesting a formal hearing.

Not the Enemy
To help companies keep their facilities safe for employees, Tucker recommends tapping into the resources of OSHA’s confidential consultations. This program offers free and confidential advice to small- and medium-size businesses nationwide, with priority given to high-hazard worksites. “On-site consultation services are separate from enforcement and do not result in penalties or citations,” Tucker emphasizes, noting OSHA conducted 31,000 on-site consultation visits in 2010.

For additional help, businesses may also turn to the Wisconsin Safety Council (WSC). “WSC is committed to reducing workplace injuries through education, training, and the dissemination of good information. And we are pleased to cooperate with anyone who shares that goal,” says Janie Ritter, WSC director.

While there may be a new sheriff in town, companies can correct problems on their own — before OSHA comes knocking.

By Ronnie Garrett

Ronnie Garrett owns and operates Garrett & Co. Studios, a Fort Atkinson company providing editorial, photography and graphic design services.

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