Inspection Priorities | OSHA Inspection

Obviously, not all workplaces covered by the OSH Act can be inspected immediately. Because the worst situations need attention first, OSHA has established the following system of inspection priorities.

Imminent Danger

Imminent danger situations are given top priority. An imminent danger is any condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately or before the danger can be eliminated through normal enforcement procedures.

Serious physical harm is any type of harm that could cause permanent or prolonged damage to the body or which, while not damaging the body on a prolonged basis, could cause such temporary disability as to require in-patient hospital treatment. OSHA considers that "permanent or prolonged damage" has occurred when, for example, a part of the body is crushed or severed; an arm, leg, or finger is amputated; or sight in one or both eyes is lost.

This kind of damage also includes that which renders a part of the body either functionally useless or substantially reduced in efficiency on or off the job. An example: bones in a limb shattered so severely that mobility or dexterity will be permanently reduced.

Temporary disability requiring in-patient hospital treatment includes injuries such as simple fractures, concussions, burns or wounds involving substantial loss of blood and requiring extensive suturing or other healing aids.

Injuries or illnesses that are difficult to observe are classified as serious if they inhibit a person in performing normal functions, cause reduction in physical or mental efficiency or shorten life.

Health hazards may constitute imminent danger situations when they present a serious and immediate threat to life or health.

For a health hazard to be considered an imminent danger, there must be a reasonable expectation that:

• Toxic substances such as dangerous fumes, dusts or gases are present, and

• Exposure to them will cause immediate and irreversible harm to such a degree as to shorten life or cause reduction in physical or mental efficiency, even though the resulting harm is not immediately apparent.

Hazard Notification

Employees should inform their supervisor or employer immediately if they detect or even suspect an imminent danger situation in the workplace. If the employer takes no action to eliminate the danger, an employee or the authorized employee representative may notify the nearest OSHA office and request an inspection.

The request should identify the workplace location, detail the hazard or condition and include the employee's name, address and telephone number. Although the employer has the right to see a copy of the complaint if an inspection results, the name of the employee will be withheld if the employee so requests.

The OSHA area director reviews the information and immediately determines whether there is a reasonable basis for the allegation. If it is decided the case has merit, the area director will alert the OSHA regional administrator and the regional solicitor, and assign a compliance officer to conduct an immediate inspection of the workplace.

Upon inspection, if an imminent danger situation is found, the compliance officer will ask the employer to voluntarily abate the hazard and to remove endangered employees from exposure. Should the employer fail to do this, OSHA may apply to the nearest Federal District Court for appropriate legal action to correct the situation.

Before the OSHA inspector leaves the workplace, he or she will advise all affected employees of the hazard. Should OSHA "arbitrarily or capriciously" decline to bring court action, the affected employees may sue the Secretary of Labor to compel the Secretary to do so. Such action can produce a temporary restraining order (immediate shutdown) of the operation or section of the workplace where the imminent danger exists.

When an Employee Refuses to Work

Walking off the job because of potentially unsafe workplace conditions is not ordinarily an employee right. To do so may result in disciplinary action by the employer. However, an employee does have the right to refuse (in good faith) to be exposed to an imminent danger. OSHA rules protect employees from discrimination if:

• Where possible, he or she asked the employer to eliminate the danger, and the employer failed to do so; and

• The danger is so imminent that there is not sufficient time to have the danger eliminated through normal enforcement procedures; and

• The danger facing the employee is so grave that "a reasonable person" in the same situation would conclude there is a real danger of death or serious physical harm; and

• The employee has no reasonable alternative to refusing to work under these conditions.

If an imminent danger situation is found, the compliance officer will ask the employer to voluntarily abate the hazard and to remove endangered employees from exposure. Should the employer fail to do this, OSHA, through the regional solicitor, may apply to the Federal District Court for an injunction prohibiting further work as long as unsafe conditions exist.

Catastrophes and Fatal Accidents

Second priority is given to the investigation of fatalities and accidents resulting in hospitalization of three or more employees.

Such catastrophes must be reported to OSHA by the employer within eight hours. OSHA investigates to determine the cause of such accidents, whether existing OSHA standards were violated, and whether additional standards are necessary to help avoid a recurrence of similar accidents.

Employee Complaints

Third priority is given to formal employee complaints of alleged violations of standards or of unsafe or unhealthful working conditions.

Every employee has the right to request an OSHA inspection when that employee feels he or she is in imminent danger from a hazard or when he or she feels that there is a violation of an OSHA standard that threatens physical harm. OSHA will maintain confidentiality if requested, will inform the employee of any action it takes regarding the complaint and, if requested, will hold an informal review of any decision not to inspect.

OSHA's Programmed Inspections

OSHA's next priority is programmed inspections aimed at specific high hazard industries, occupations, or health substances, or other industries identified in OSHA's current inspection procedures. Industries are selected for inspection on the basis of such factors as the injury incidence rates, previous citation history, employee exposure to toxic substances, or random selection. Special emphasis programs may also be developed and may be regional or national in scope, depending on the distribution of the workplaces involved.

Comprehensive safety inspections in manufacturing will be conducted normally in those establishments with lost work-day injury rates at or above the BLS national rate for manufacturing currently in use by OSHA. States with their own occupational safety and health programs may use somewhat different systems to identify industries for inspection.

Follow-Up Inspections

A follow-up inspection determines if previously cited violations have been corrected. If an employer has failed to abate a violation, the compliance officer informs the employer that he/she is subject to "Failure to Abate" alleged violations and proposed additional daily penalties while such failure to abate or violation continues.

Records Review

A records review is an examination of the employer's injury and illness records to determine whether there will be a comprehensive inspection of the workplace. The compliance officer reviews the OSHA Form 200 (log of occupational injuries and illnesses) and employment data of the establishment. Using these data, the compliance officer calculates the lost workday injury (LWDI) rate for the establishment. This figure is compared to the national average for manufacturing, published by the Bureau of Labor Statistics (BLS). If the calculated LWDI rate is below the BLS rate, the compliance officer will not normally conduct a comprehensive safety inspection. If the LWDI rate is above the national average, an inspection will be conducted.

OSHA Inspections

Under the Occupational Safety and Health Act of 1970 (the Act), the Occupational Safety and Health Administration (OSHA) is authorized to conduct workplace inspections to determine whether employers are complying with standards issued by the Agency for safe and healthful workplaces. OSHA also enforces Section 5(a)(1) of the Act, known as the General Duty Clause, which requires that every working man and woman must be provided with a safe and healthful workplace. Workplace inspections are performed by OSHA compliance safety and health officers who are knowledgeable and experienced in the occupational safety and health field and who are trained in the OSHA standards and in the recognition of safety and health hazards. Similarly, states with their own occupational safety and health programs conduct inspections using qualified State compliance safety and health officers.

OSHA Inspections

Workplace inspections are performed by OSHA compliance officers who are knowledgeable and experienced in the occupational safety and health field and who are trained in OSHA standards and in the recognition of safety and health hazards. Similarly, states with their own occupational safety and health programs conduct inspections using qualified state compliance safety and health officers.

Conducting Inspections

Inspections are usually conducted without advance notice. In fact, alerting an employer without proper authorization in advance of an OSHA inspection can bring a fine of up to $1,000 and/or a six-month jail term. This is true for OSHA compliance officers as well as state inspectors.

There are, however, special circumstances under which OSHA may give notice to the employer, but such a notice will normally be less than 24 hours. These circumstances include:

• Imminent danger situations which require correction as soon as possible;

• Inspections which must take place after regular business hours or which require special preparation;

• Cases where notice is required to assure that the employer and employee representative or other personnel will be present;

• Cases where an inspection must be delayed for more than 5 working days when there is good cause; and

• Situations in which the OSHA area director determines that advance notice would produce a more thorough or effective inspection.

Employers who receive advance notice of an inspection must inform their employees' representative or arrange for OSHA to do so.

Refusing an Inspector

If an employer refuses to admit an OSHA compliance officer or if an employer attempts to interfere with the inspection, the Agency will take appropriate legal action.

Based on the 1978 Supreme Court ruling of Marshall v. Barlow's Inc., OSHA usually may not conduct warrantless inspections without valid consent. The Agency may, however, inspect after acquiring a judicially authorized search warrant based on administrative probable cause or evidence of a violation.

General Duty Clause | OSHA

The General Duty Clause, found in the Occupational Safety and Health Act of 1970, has become increasingly important to employers in the last few years as OSHA has begun to utilize the clause in more and more of its penalty and enforcement actions. The following information describes the General Duty Clause and how it is being used by OSHA to ensure a safe work environment.

What is the General Duty Clause?

Section 5(a)(1) of the Occupational Safety and Health Act of 1970 requires that every working man and woman must be provided with a safe and healthful workplace. The section, more commonly known as the General Duty Clause, specifically states:

"Each employer shall furnish to each of his employees employment and a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

In simple terms, this statement means that you, as an employer, may be obligated to protect your employees from recognized hazards in the workplace even if there is not an OSHA standard which applies to the situation or if hazards still exist after compliance with a standard. In effect, the General Duty Clause obligates employers to take additional steps toward safety if the well-being of employees is in jeopardy.

How Does OSHA Use the General Duty Clause?

Revised: 2002/04
The General Duty Clause extends OSHA's authority beyond the specific requirements of the OSHA standards when a recognized workplace hazard exists or potentially exists. Between 10/00 - 9/01, the General Duty Clause was used as the basis for 1,116 OSHA citations. Over $881,000 in penalties was collected as a result of these citations. The General Duty Clause is often used by OSHA when there is no specific standard which applies to a recognized hazard in the workplace. OSHA may also use the General Duty Clause when a standard exists, but it is clear that the hazards involved warrant additional precautions beyond what the current safety standards require.

Revised: 2002/10
OSHA’s action on ergonomic hazards in the workplace is a good example of the application of the General Duty Clause in situations where a standard does not currently exist. There are no standards governing job or work station design to reduce or prevent cumulative trauma disorders or other injuries. However, OSHA has widely applied the General Duty Clause to address ergonomic hazards in the workplace. Typically in these situations, OSHA will discover ergonomic-related problems while reviewing a company’s accident and injury records. The highly publicized citations issued to several meatpacking plants for cumulative trauma disorders are an example of the use of the General Duty Clause to correct ergonomic hazards. The action in this area eventually led to the issuance of ergonomic guidelines for the meatpacking industry and consideration of a standard for the general industry.

Revised: 2002/10
OSHA has also issued General Duty Clause citations on other issues where no apparent safety standard exists. Citations have been issued for lack of training, failure to have additional safety or alarm equipment to detect or warn of chemical leaks, and failure to provide safe locations or safe access to valves or other instruments necessary to an employee’s job.

Revised: 2002/10
What about situations where a safety standard currently exists on a particular subject? Are you doing enough if you are in compliance with OSHA’s safety standard? The answer, unfortunately, is maybe not. OSHA has also used the General Duty Clause to cite employers who knew that an OSHA standard was inadequate to protect their employees from harm.

Revised: 2002/10
At least one Circuit Court decision (International Union UAW v. General Dynamics, 815 F.2d 1570, D.C. Cir. 1987) has validated OSHA’s use of the General Duty Clause in this manner. In this situation, after several injuries and eventually a death involving the use of freon in confined spaces, OSHA cited General Dynamics under the General Duty Clause for not having a confined space procedure in situations where an employee could be asphyxiated or chemically poisoned by the cleaning compound (freon) being used. General Dynamics appealed the citation to the Occupational Safety and Health Review Commission which ruled in favor of the company noting that since there was a specific OSHA exposure standard for freon (eight-hour time-weighted average), OSHA could not cite the company under the General Duty Clause. The Commission’s decision was then reviewed by the Circuit Court of the District of Columbia which decided in favor of OSHA. The court stated that:

Revised: 2002/10
...if (as alleged in this case) an employer knows a particular safety standard is inadequate to pro- . . . tect his workers against the specific hazard it is intended to address, or that the conditions in his place of employment are such that the safety standards will not adequately deal with the hazards to which his employees are exposed, he has a duty under Section 5(a)(1) to take whatever measures may be required by the Act, over and above those mandated by the safety standard, to safeguard his workers.

Conclusion

Revised: 2002/10

Section 5(a)(1) of the Occupational Safety and Health Act of 1970 places additional responsibilities on the employer and the safety manager to ensure that a safe work environment is provided to all employees. The General Duty Clause is being increasingly applied to a wide variety of situations, many of which have not been addressed by a specific OSHA standard. What may be even more disconcerting, however, is that general duty citations can also be issued if OSHA feels that additional safety equipment or procedures are necessary beyond what is required in an OSHA standard. Thus, the General Duty Clause is making it increasingly difficult for companies to fully comply with OSHA’s requirements.

One way to deal with the increasing threat of general duty violations is to make good faith efforts to correct existing workplace hazards and to identify and address new hazards as they appear. Some steps you can take to accomplish this goal include:

• Regularly review your accident and injury records to identify injury patterns or areas for concern;

• Investigate every accident or injury in the workplace to determine the specific cause and to determine whether any action needs to be taken to prevent the accident or injury from recurring;

• Conduct job hazard analyses on a regular basis in order to identify the specific hazards associated with every job and to identify new job hazards;

• Document your training efforts and conduct periodic retraining as necessary;

• Consider establishing an employee safety committee in the workplace; and

• When you have met the “letter of the law,” step back, and critically assess whether the process might still be unsafe