Workplace Accidents and the Aftermath – How to Respond to an OSHA Inspection – CCIG
Workplace Accidents and the Aftermath – How to Respond to an OSHA Inspection
by Gary Glader – Practice Area Leader, Safety Consulting, CCIG
An employee fatality or serious injury is one of the most tragic occurrences a business owner or manager can encounter. It’s so difficult that most choose not to think about it – but that leaves them unprepared and vulnerable.
When a fatality or serious injury occurs, employers have to navigate the emotional nightmare of managing the situation and notifying the employee’s family. In addition to those unimaginable tasks, employers face complex administrative processes with their insurance company and the Occupational Safety and Health Administration (OSHA).
Advancements in safety processes and programs have made a meaningful impact on the number of workplace injuries and fatalities, but OSHA can still appear at a job site unannounced.
Why Do OSHA Inspections Occur?
OSHA inspections are triggered for any number of reasons, and over 24,000 inspections occurred in 2021. Businesses must notify OSHA within eight hours of a fatality and 24 hours after a hospitalization or amputation. Unfortunately, many businesses are unaware of OSHA’s prescribed time frames, which can expose them to further scrutiny and citations.
OSHA inspections can occur due to:
- Employee complaints
- Poor safety history reflected in OSHA 300 logs
- Specific focus on more dangerous industries
- Referrals (competitors or general public)
- Random inspections
- Fatalities and serious injuries
OSHA’s current penalties are:
- $15,625 for the most common “serious” violation
- $156,259 for the more significant “willful” violation
For many clients, the sting of hefty fines pales in comparison to the reputational damage associated with violations appearing on OSHA’s public website. A poor OSHA record can prevent contractors from bidding or being awarded work by high-profile owners and general contractors, putting them at risk of losing their business.
How Can Companies Prepare for an OSHA Inspection?
Properly preparing for an OSHA inspection can mean the difference between a long and painful inspection with many citations and an outcome with few (if any) citations and penalties. Here are three steps we recommend our clients take to prepare for an inspection.
#1. Gather Evidence of Safety Programs and Training
Without solid documentation, safety doesn’t translate to OSHA compliance. Many OSHA regulations require employers to provide evidence of safety programs and employee safety training. An employer can have an effective safety program, but violate OSHA requirements because they lack documentation and proof of their programs and processes.
#2. Educate Employees on Safety Procedures
Employee actions (or inactions) cause many OSHA-related incidents. For example, if OSHA observes an improperly set up ladder when driving by a construction site, the inspector can stop and issue a citation.
#3. Know Your Rights During an OSHA Inspection
An OSHA inspection can occur at any time, with any inspector. Educating yourself on your rights during an inspection can help protect you and your business if part of the inspection oversteps the bounds of what’s allowed.
Case Study – OSHA Fatality Investigation and Response
Part of our role at CCIG is helping clients develop safety strategies to prevent workplace accidents and guiding them through the difficult process of managing their administrative responsibilities when these heartbreaking events happen. Sadly, one of our clients experienced a job site fatality several years ago. It was truly a tragic incident that occurred even though the company had well-documented procedures and processes in place to prevent it.
Following the onsite inspection, OSHA requested information from the client as part of its ongoing investigation and to determine if OSHA violations contributed to the incident. In addition to the traditional information requested by OSHA during an inspection, CCIG’s safety consultant advised the client to collect the following information:
- Written safety rules, including rules regarding unsafe behavior related to this incident
- Documentation of safety training, including the specific rule that could have prevented the fatality
- Copies of job site safety inspections specifically looking for compliance with the rule that could have prevented the employee’s death
- Copies of disciplinary action for safety violations, including the safety rule that would have prevented the death of the employee
Additionally, CCIG’s safety consultant drafted a letter for the client to send to OSHA along with the documentation detailed above. Three months following the OSHA inspection, the case was closed with no citations or penalties issued as OSHA found the employer had rules and procedures in place to appropriately address this risk.
How Does OSHA View Employee Misconduct?
OSHA acknowledges employers cannot feasibly observe and prevent all unsafe behaviors and recognizes several affirmative defenses to possible violations.
The employer can establish an unpreventable employee misconduct defense if they can prove the existence of:
- Rules prohibiting the unsafe behavior
- Employee training on those rules
- Periodic inspection of the job site to make sure rules were followed
- Disciplinary action when rules are violated
These four elements of the defense represent an employer’s reasonable effort to prevent such misconduct, and the agency will not hold that against the employer. These four elements must be in place prior to an OSHA inspection.
Planning, Preparation, and Processes Can Benefit Businesses of All Sizes
OSHA compliance is an uninsurable risk, but a very real threat to all businesses in this country. Many small and medium-sized businesses don’t have access to a safety professional to handle and prepare for these issues, but safety consulting services are critical to a business.
CCIG works with organizations of all sizes to structure safety strategies and programs. From subcontractors to general contractors to large construction companies, we can build safety programs that protect your team today and in the future.
Want to learn more? CCIG is hosting a free workshop, “How to Survive an OSHA Inspection,” on April 11, 2023. Register here: https://events.thinkccig.com/april2023workshop-OSHA.
You can also learn more about CCIG at thinkccig.com.