OSHA Inspections in the Construction Industry
March 15, 2022
Imagine the following scenario: you’re in your office when you get a call from one of your foreman that OSHA has just shown up to your jobsite. The Compliance Officer is telling your foreman that they are following up on an anonymous complaint and they would like to walk the jobsite to conduct an inspection. Your mind races to try to figure out who could have made the complaint and what it could possibly be about. You tell your foreman that you will get to the jobsite as soon as you can, but you know that it may already be too late to prevent a citation.
Has this happened to you? If it hasn’t, it’s likely that it will—especially since construction is considered to be a ‘high risk’ industry.
Under the Biden administration, OSHA is increasing its number of safety officers so that it can conduct more inspections. Furthermore, if a bill before Congress is passed then maximum fines could increase significantly. The bill proposes to raise the maximum fine for willful or repeat violations of OSHA workplace safety rules from $136,532 to $700,000, with a $50,000 minimum. The failure-to-abate fine would increase from $13,653 to $70,000. One violation could effectively put your company out of business, especially since the company is likely to receive multiple citations.
OSHA typically prioritizes inspections based on 4 categories:
- Imminent danger – reasonable certainty of a fatality — therefore top priority inspection
- Fatality/catastrophe – a report was made to OSHA and you can expect an inspection ASAP
- Complaints/Referrals – a worker filed a complaint about safety or health hazard — lower priority inspection
- Programmed inspections – covers industries with high injury and illness rates, specific hazard etc. This is the level of most inspections.
What can you do to survive an inspection?
First, do you have a written internal guideline for OSHA inspections? If you don’t, create one immediately and make sure leadership, safety, superintendents, foreman and even your laborers and operators know what to do if OSHA shows up on a jobsite.
Second, know how the inspection process works and what you should do to protect the company.
OSHA does not and will not notify you of an inspection in advance. In fact, there’s a good chance that before making their presence known to your crew that they have already watched your operations from afar. You have the right to refuse the inspection and request that the officer get a warrant, but this is not advisable in most situations.
There are three parts to an OSHA visit:
- The Opening Conference: The OSHA officer will identify themselves, show a credentialed badge, and state the purpose and scope of their visit. TIP: Make sure that you write down the officer(s) name and serial number as you may not see this information again until a citation is issued.
- The Inspection or Walk Around: This is their primary purpose for the visit. Review the scope of their visit and keep them within the scope – for example, take them directly to the area of the jobsite that they wish to see and take the most direct route to that area.
- The Closing Conference: This is where the officer will identify potential concerns and discuss next steps. The officer may request that you provide them with various documents within a certain time frame. TIP: Ask the officer to make the request for documents in writing, such as in an email. Be sure to provide only what is asked for. This discussion may or may not occur the day of the visit.
Third, approach this scenario knowing that OSHA is there to save lives and prevent injuries. Getting defensive and combative is likely not going to be helpful. Work with the officer in a manner of cooperation and partnership.
Fourth, be prepared to address the critical areas the officer will focus on:
- Compliance issues
- Training records required by OSHA standards
- Records of injuries and illness – OSHA 300 log and 300A summary for 5 years.
- Medical exams when required by OSHA standards
- Proper PPE
- Proper posting of required notices – for example, the 300A summary must be posted from February 1 to April 30th
On the inspection tour or walk around, make sure you do the following:
- Walk with the CSHO and never leave them alone or without an escort.
- Make sure everyone is wearing correct PPE including the CSHO.
- Identify and photograph the same conditions the CSHO does – and take detailed notes on what the CSHO is identifying and correct any unsafe conditions or behaviors immediately as this can build “good faith” with the CSHO. WARNING– be careful because you do not want to agree that a hazard exists.
- Make sure the CSHO knows all photos are trade secrets.
- If an employee is to be interviewed, be aware they could be interviewed in private.
- CSHO could attempt to increase the scope of the inspection, but try to keep them on task as discussed in the opening conference.
- If asked questions by the CSHO, do the following:
- Pause – think about your answer.
- Only answer the question asked.
- Avoid arguing with the CSHO – it will get you nowhere and you will likely lose.
Once the inspection is over, you may not hear anything for several weeks or months because OSHA has up to 6 months to issue a citation. Citations and penalties can be issued only by the Area Director and will arrive via certified mail. As the employer, you are required to post the citations for 3 days or until abated– whichever is longer. Penalties may be reduced based on your good faith in work with the CSHO, the size of your business and your inspection history.
As mentioned, there are several different violation types:
- Willful: This is bad because it means that you knew that there was an issue and that you intentionally and knowingly committed a violation.
- Serious: There is substantial probability of death or serious injury and you likely knew or should have known the hazard existed.
- Other-Than-Serious: A violation has a direct relationship to safety and health, but likely would not cause death or serious physical harm.
- Repeated: A violation that is the same or similar to a previous violation – this could result in a significant penalty.
Remember, there is an appeal process if you face citations. This could be informal or formal and could escalate up to an administrative law judge for a ruling. TIP: Even if you do not dispute the circumstances of the citation you can still dispute the classification of the citation. For instance, you can ask that a Serious be reduced to an Other-Than-Serious. This will reduce the penalty and may make a difference in how future citations of a similar nature are classified.
In order to survive an OSHA inspection, being prepared is critical. Have your guidelines written out and reviewed by your team. Make sure that you or a member of your team are trained in OSHA rules specific to your business and can address issues before they become a violation. Work with an outside party to conduct a mock-OSHA inspection. Some OSHA agencies in certain states will conduct these for you. This has the added benefit of helping build “good faith” should an actual inspection occur. Make sure you can document all of your safety training and that new hires and/or temporary employees receive safety training.
Finally, be honest, cooperative and courteous. The OSHA officer has a job to do, just like you, and has a shared common goal—to make sure your employees go home safe to their loved ones.
For further information on mock OSHA inspections or developing OSHA guidelines for your operation, please contact your Cottingham & Butler representative.