Regarding OSHA inspections and violations, XYZ Widget Company ensures that it guarantee healthful and safe working conditions for its employees. The company achieves this by developing health and job safety standards and communicates them to all employees. The company also complies with the requirements of OSHA to help it employees prevent or reduce injuries, hazards, and deaths in the workplace.
XYZ Widget Company ensures that they comply with the requirement of OSHA by prioritizing the following:
- Ensuring that employees report any accident that results in a death or hospitalization, within eight hours. The company’s safety director investigates to establish the cause of such accidents.
- The company prioritizes worker complaints and all forms of allegations of hazards as well as violations are highly prioritized. The company also allows employees to request anonymity whenever they file any complaint.
- The company investigates the complaints presented by employees on the basis of their severity. In cases of hazards of lower priority, the company’s safety director may telephone the employee to enable him or her describe the health or safety concerns experienced.
- The employee is expected to give details on the alleged health or safety hazard to enable the management to identify possible problems or violations and plan for corrective actions.
- XYZ Widget Company also trains employees on the hazards they may get exposed to while at work while also training them on how to protect themselves from such hazards. The records of all training are kept. New employees are often given general safety orientation such as emergency procedures and company safety regulations. Importantly, the company is committed to offering specific training on the health and safety hazards of the jobs offered and guidance on how employees can carry out their jobs safely.
In the event of a worst case scenario in which ten employees are injured and one is killed on the job, XYZ Widget Company’s corporate safety will follow the procedure outlined below
- Seek Medical Attention: the first thing the company will do is to ensure that the injured employees receive medical attention immediately. If the injury happens to be serious, the company’s corporate safety will call 911 for emergency services. Even if emergency attention is not required, the employee should be encouraged to seek medical care as soon as possible.
- Filing a report: after the injured workers have received appropriate medical care and attention, the employer will provide them with claim forms if they ask for them. If the injured employees and the family of the dead employee choose to pursue a claim, the employer reports the injury and death to the company’s compensation insurance company.
- Cooperation with employee’ compensation: if a claim is pursued, the company cooperates with the compensation career of the workers as well as their attorneys. The company’s management hands over all manner of files and documentation to the employees when asked to provide such information. However, the organization does not give records or documentation to anyone else. In case another different attorney contact the management, claiming to represent the injured employee, then the company contacts the workers’ compensation carrier immediately to seek further clarification.
- Welcoming the workers back: As soon as the employees become physically and emotionally able to resume work after an injury, the company welcomes them back regardless of whether the injury led to a successful claim or not. These employees are not penalized or terminated for filling a claim since doing so can possibly invite further legal consequences.
- Prevention of future issues: The Company then takes the responsibility of preventing future injuries and deaths from occurring. The organization uses le lessons from the past experience to formulate and implement ideas, aimed at reducing future risks.
After receiving the citation, the organization ought to automatically seek an informal conference with OSHA and think about challenging the given citations. The company must challenge the citations within fifteen working days. By taking part in OSHA’s informal conference, there is a possibility that the fines may be reduced considerably. However, if the conference proves inefficient in contenting the citations, the company might request for simplified proceedings at the administrative law court, where a judge will question the parties regarding the laid out safety procedures. Depending on the ruling of the administrative law judge, XYZ might appeal at the OSHA review commission, where their issues will be addressed and if possible, an Informal Settlement Agreement will be reached. However, if XYZ views the agreement as unfair, the company may take the matter to the US Court of Appeals where a judge may rule in their favor or not. In case the outcome is unfavorable to the organization, they may appeal at the US Supreme Court.
There is a possibility that the 100k fine issued to the company may be reduced or rescinded if XYZ can put up a strong defense against the citations. To begin with, the employee misconduct defense is the basic option the firm has at its disposal. The defense posits that it is unfair to punish an organization for the employees’ activities when the said workers had been provided with various resources and opportunities to abide by the law and company policies. The second defense is impossibility of compliance, which outlines that complying with OSHA’s standards were impeded by the nature of the particular work. With this defense, the company must prove that conformity with the standards was functionally impractical or may have precluded performing the required job and other means of staff protection were either in use or unavailable. The other defense is that the mentioned equipment was not in use. For example, the company cannot be fined if a malfunctioning tool was in the process of being repaired but an employee chose to use it. Subsequently, the greater hazard defense can be used; however, XYZ needs to prove that compliance with OSHA’s standards would have resulted in various risks compared to noncompliance. Finally, XYZ can use the no hazard defense in contesting the citations. OSHA should provide evidence that noncompliance resulted in immediate and direct harm to employees. However, if OSHA is unable to confirm that a danger exists, it is possible that the citation may be rescinded at the contest stage or informal conference.
XYZ Widget Company clearly stipulates the rights and responsibilities of both the employees and employer, under the OSH Act. The following fact sheet summary outlines these rights and responsibilities.
Employee Rights and Responsibilities
As an employee, you are entitled to the following legal rights. A right to:
- A healthful and safe workplace
- Ask or remind your employer to rectify dangerous conditions.
- Take part in enforcement inspections.
- Any form of information that your employer may have about any possible exposure you may have had to health or security hazards such as noise or toxic chemicals.
- Any medical records that your employer has for you
- Report and file a complaint concerning workplace hazards to the relevant authorities.
- Not be discriminated upon for any attempt to exercise your safety and health rights. The employer should not harass you, fire you, treat you differently, or threaten you for demanding or exercising tour safety and health rights.
- Reject work that exposes you to serious harm or immediate danger. However, before rejecting the unsafe work, the employee should request the employer to get rid of the hazard or consider assigning you an alternate task.
- Information about workers’ rights, illnesses, and worker injuries from the employer.
- Effective training from the employer on any chemical and other hazards that the employee may be exposed to in the workplace, and information on how best to protect yourself from injury.
XYZ Widget Company workers also have a responsibility to:
- Adhere to all the applicable safety standards
- Adhere to all legal employer safety as well as health regulations and rules, and se or wear the appropriate protective tools while working.
- Read and comply with the workplace health and safety poster accessible at the jobsite.
- Report any hazardous situation to the employer
- Report any form of job-related illness or injury to the employer and find treatment promptly.
The company’s Employer Responsibilities include:
- Guaranteeing a workplace devoid of serious hazards
- Observe safety standards
- Ensure workers have and wear safe equipment and tools, and appropriately maintain such equipment.
- Warn workers on potential hazards by use of posters, labels, color codes, and signs.
- Create and update operational procedures and effectively communicate them to allow employees adhere to health and safety requirements.
- Offer training and medical examinations to employees.
- Keep and post records of work-related illnesses and injuries
- Give access to the medical records of workers to employees and to their accredited representatives.
While the new revised OSHA standards are effective, the majority of its standards are extremely outdated. These obsolete standards are grounded on the ancient vintage national consensus principles, majority of which have been revised numerous times from the time they were adopted. The best example is the permissible exposure limits. This factor has brought about a bizarre absurdity where employees can get exposed to situations that can bring about adverse health effects, but are not violations of the standards set by OSHA. As such, OSHA has currently failed to address such safety and health function. The standards for hoists and derricks are slso decades old, and are based on the mid 1900s edition of ANSI B30.2. Similarly, woodworking equipment standards dates back to 1950s ANSI O 1.1’s edition. What is more, OSHA principles for spray finishing and flammable liquids are based on the ancient editions of 1960s. Therefore, the fact that more recent NFPA edition standards have been adopted by several local and state jurisdictions compared to those standards adopted by OSHA brings about another incongruity. As a result of the changes that were effected on fire codes over four decades ago, an employer who adheres to OSHA standards and regulations may end up violating the prevailing fire code. On the contrary, in some cases, employers who follow the high-tech fire codes that the local jurisdictions adopted violate the standards set by OSHA.
Overall, OSHA does several things right, and employees are admittedly better off with OSHA than without it. Furthermore, the national office has engaged in several useful initiatives such as designing a website, which has rendered the agency quite accessible to any individual with a computer. However, the agency undoubtedly has problems as it fails to address some critical safety and health functions. Also, there is need to deploy more inspectors while also offering better training to enable to sites to be inspected promptly and to minimize cases of some hazards going unnoticed in times of inspections. Therefore, better internal controls and management can play a critical role in controlling the bad aspects of OSHA outlined above. The agency however, still owes it to the American citizens to address such issues, lest the bad overshadows the good side of OSHA.
To ensure compliance with OSHA, the company will follow the safety and health inspection procedure highlighted below.
- Prior to the opening of inspection conference, no employee but the facility manager should converse with OSHA compliance officer.
- The safety officer need to check and review the credentials of the compliance officer while also obtaining the business card having the phone number and address for purposes of ensuring that officer is on an official duty of inspection
- The employer has to determine the purpose, circumstance, and scope of the visit to the organization from the compliance office. In case the inspection is as a result of a complaint, then a copy of the complaint should be obtained.
- The employer then determines whether the compliance officer possess a warrant to carry out the inspection, and determines the scope of the warrant, if any.
- The OSHA counsel of the facility is hence notified for purposes of receiving instructions, raising some objection and defense.
- The designated representatives of employees are then notified about the presence of OSHA.
- A Certified safety officer need to stay with the OSHA compliance officer all through during the inspection apart from during employee interviews. This officer needs to take detailed notes during this process.
The following safety and health inspection checklist may be used during the inspection
(X) Requires Action
|Signs and bulletin boards|
|Are they legible and clean?|
|Does the company frequently change the material?|
|Is there debris, loose material, or worn carpeting?|
|Are these floors wet, oily, or slippery?|
|Aisles and stairways|
|Are they unblocked and neat?|
|Are they well lighted?|
|Do they have handholds and handrails in place?|
|Are they visible and marked?|
|Are sound-dampening devices, screens, and guards available and effective?|
|Are the furniture well maintained and safe?|
|Are the ladders well maintained and safe?|
|Are the fire extinguishers in place and regularly tested?|
|Are emergency lighting fixed and tested regularly?|
|Are the structures conforming to all the relevant standards of use, plumbing facilities, occupancy, and building services?|
|Are the doors strong enough for safety?|
|Are all wall and floor openings fixed?|
|Are all materials safely stored?|
|Air Handling System|
|Are the standard requirements met by the rate of air exchange?|
|Are the systems free of any source of contamination?|
|Is humidity in the standard range?|
|Are food preservation areas and washrooms clean?|
|Are there adequate showers, clothing storage, toilets, and potable water?|
|Are there effective measures of preventing the spread of diseases?|
|Are workers provided with personal security by exist and entry procedures at night?|
|Are there emergency procedures in place?|
|Are there missing bulbs?|
|Are there any dark regions?|
|Are all materials safely and neatly piled?|
|Are work areas and passageways free from obstructions?|
Safety professionals could possibly face some legal liabilities while working in the field. As a result, in the course of their work, such professionals need to consider the environmental and social consequences and avoid letting professional judgment to be haphazardly overruled. Additionally, they should avoid committing safety skills to tasks whose consequences are dangerous. The reason is that gravity-based penalties can be waived in any case a company can prove that it possesses an effective management program for compliance, apart from in cases that may result in risk or serious harm, those reflecting repeated noncompliance, and those that tolerate criminal behavior.
Nonetheless, when safety professionals engage in self-audits as well a good faith attempt to rectify a prevailing hazard, such actions may result into reductions in penalties and no citation at all, if such hazards had been corrected before the inspection. However, when safety professionals fail to correct the hazards identified through self-audits, they may be issued with willful OSHA citation. This occurs when the employer deliberately ignores the hazards identified, refuses to rectify hazards that are bound to cause death or serious injuries. It is worth noting that OSHA has the right to use as evidence, self-audits to arraign an employer. Documented knowledge about violative situation can also land security professionals into personal criminal liability. Furthermore, under environmental statutes, deliberately providing false representations, statements, or certificates can have legal liability implications. What is more, the OSHA offers criminal sanctions for various types of behaviors that impact the safety of workers. However, safety and health professionals can minimize such potential risks of legal liability by ensuring that adhere to the OSHA standards.
A company can possibly defend itself against citations of willful violations, general duty violations, as well as against repeat violations. The defenses however, need to be based on procedural challenges, constitutional challenges, as well as on factual grounds that have been successfully used in history. With the possibility of crippling and harsh punishments from such violations, it is wise for company presidents to develop vigorous defense against such violations. While it is critical to seek the aid of attorneys who have vast experience in representations in OSHA violations, it is more important for employers to have their personal defenses against OSHA violations. In doing so, employees need to consider all the technical and pitfalls that they may fall in to avoid heavy fines or criminal charges.
To begin with, the employer may defend himself by claiming that the occurrence of an incident or an accident does not automatically imply that the employer violated the OSHA standards, much as the occurrence of an accident can be a proof or evidence of a hazard. As a result, the employer can insist that the GDC citation should deal with hazards that existed before the incident occurred, rather than the specific facts that brought about the occurrence of the incident. The implication is that the hazard for any form of citation issued has to be reasonably foreseeable. Also, all the factor that led to the hazard have to be present at the same time and in the same place for purposes of proving a hazard’s foreseeability. As a result, the employer can insist that reasonable foreseeability of a particular workplace hazard be established, instead of the particular situations which caused the occurrence of the accident or violation.
Another defense that can be presented by a company with considerable level of success is the impracticality of compliance defense. The employer can base his argument on the assumption that it was impossible to ensure compliance with the OSHA standards due to the nature of the particular work. However, to successfully use this particular defense, the employer has to be able to attest that compliance with the OSHA standards was essentially functionally impossible. Alternatively, the employer should be in a position to affirm that compliance with such standard precluded performance of the prerequisite work and that all the alternative means of protecting employees were either in use or unavailable. This factor implies that a safety plan that is site specific, and that details alternative measures is important for this particular form of defense.
Another defense that an employer can use is one whereby the cited tool or equipment was not in use, or the situation lacked a demonstrable hazard to the employee for a particular alleged violation. For instance, if an inoperable tool is seen during OSHA inspection, and the tool was being repaired in the process of an occurrence of an accident that led to an alleged violation, then this becomes un-citable situation per the defense allowed.
In the decision by the United States’ Supreme Court over Marshall v. Barlow’s, it was ruled that employers are entitled to a constitutional right to mandate that OSHA acquire a warrant prior to an inspection. However, the warrant has to be based on a feasible cause, implying that the basis for choosing the facility must be reasonable. In case OSHA fails to acquire a warrant when a request is presented, or if the warrant obtained is not grounded on probable cause, then the employer can deny entry into the facility. As a result, any citation on the basis of the invalid warrant is vacated. While employers have the right to ask, OSHA inspectors often acquire warrants before carrying out an inspection. In most cases however, this is not often a good idea since it creates a rather adversarial attitude to the visit.
Pros of obtaining a warrant prior to inspection
There are various ways in which asking an inspector to get a warrant can be advantageous to an employer. These include:
- it may make the inspector to walk away for good and not return, particularly if he or she is a routine inspector
- The warrant obtained may possess a narrow scope. The reason is that many judges tend to draw narrow warrants that are restricted to the specific grievance alleged in the proclamation placed before the judge.
- The employer will get an opportunity to buy some time since the warrant would not be handed our right away. In most cases, inspectors have wait for as long as one month, in such a case, if the employer is aware of any existing hazard, he or she will have ample time to rectify it and evade fines.
- There is a reduction in the risk incurred since OSHA will have little discretion in citations and fining. Since the process of settlement is similar irrespective of whether or not a warrant has been given out, the risk of greater penalty is greatly reduced.
On the other hand, asking for a warrant can work on the disadvantage of an employer in the following ways:
- Your quest for a warrant may be assumed to imply that you do not need an inspector in your company, hence pushing the inspector to look for the reason behind this, thus inspect your facility more closely upon his or her return.
- The employer may be unlucky to be given a warrant with a broad scope based on a mere single complaint from an employee.
The concepts of workers compensation and safety function both create images of payroll assistance and devastating injuries. Nonetheless, many people often believe that the terms are interchangeable. Unlike workers compensation that helps workers pay their bills, safety function gets an injured worker back to work as soon as possible. What is more, workers compensation is an insurance program that is authorized by the government. While every state’s program is unique, overall, workers compensation offers protection to employers against possible negligence claims as a result of employee injury while in the workplace. In response, workers receive medical treatment and replacement wages. Therefore, the regulations and requirements for the coverage of workers compensation vary from state to state, each having a governing body that administers the combinations of private and public systems. Moreover, unlike safety function, workers compensation offers weekly payments aimed at replacing wages or supplementing economic loss, coverage of medical expenses or reimbursement. However, as opposed to safety function, workers compensation fails to cover punitive damages or pains and sufferings resulting from the negligence of employers.
On the other hand, safety function focuses on addressing injuries, illnesses, and disabilities linked to worksite and focuses on educating employees on how to prevent such incidences. It is thus safe to conclude that the line difference between safety function and workers compensation is a narrow one. Although both concern workplace injuries, one gives payment of medical costs to workers who are injured, thus defending employers from possible litigation. On the other hand, the other is a specified treatment aimed at getting workers healthy. This difference in role marks the main distinction between safety function and workers compensation.
The OSHA made an announcement regarding the new rules for the reporting of workplace illnesess and injuries in May 2016. In the new rule that seeks to improve tracking of illnesses and injuries in the workplace, two main provisions are outlined. First, the new rule obliges employers to present work-related illness and injury reports electronically. Secondly, the rule requires employers to inform employees of their right to report any illness or injury without any fear or threat of retaliation. While this new rule was initially planned to be effected in August 2016, the federal district of Texas delayed it by issuing an order commanding OSHA to stop implementation until December the same year. Although another petition was placed requesting for further halt on the rule, the court refused that petition, a factor that saw the rule taking effect in December 2016.
Before the new rule was implemented, employers were not expected to submit completed forms to OSHA lest they received a letter that asks them to do so from the agency. Upon its implementation, some employers were asked to submit such information electronically by use of a safe website given by the agency. However, the reporting requirements were phased in over a period of two years. The new OSHA regulation required that companies with 250 employees and above to start submitting information electronically by July 2017. The companies are also expected to have submitted information from all OSHA forms by July 2018. Those with less than 250 employees and operating in high-risk industries must also electronically submit information by the same due dates. However, nothing in this new policy changes the kind of data that employers have to collect. Additionally, the standard does not change the employers’ responsibility to report any work-related fatalities. Employers who were initially needed to do so will continue to complete, certify, and retain illness and injury records annually.