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What do After an OSHA Inspection
An OSHA inspection can be a very important tool to help you make your workplace safe. Other fact sheets have dealt with how to file a complaint and what to do during an inspection. This factsheet goes a step further: what happens after the inspection and what rights and opportunities workers have to participate in the process.
Among the rights workers have to participate in the post-inspection process are these:
- right to know the results of the OSHA inspection, what violations have been identified, and when they will be corrected
- right to ask for a review of any decision not to issue a citation
- right to file a formal protest if OSHA gives the employer too much time to correct a dangerous hazard
- right to contest any effort by your employer to delay correcting the hazard
- right to participate in any informal conference or negotiations between your employer and OSHA
- right to initiate your own informal conference with OSHA to discuss any matters related to its inspection or findings
- right to participate fully in hearings and pre-hearing settlement negotiations that ensue when an employer contests the citation
The sections that follow provide more detail on the post-inspection process and your rights to play an active role in it.
I. The Citation
If the OSHA inspector finds one or more violations, a "Citation and Notification of Penalty" will be sent to your employer. The citation includes a brief description of the violation, a timetable for correcting the hazard, and the penalty. The person who filed the complaint resulting in the inspection, and the Union, will also be sent copies. Management must post the citation notice in a conspicuous place near each cited hazard for 3 working days or until the hazards are taken care of, whichever is longer. Any documents related to the abatement, such as an abatement plan, also must be posted. The employer does not have to post the penalties. To ensure that the Union receives a copy of the citation and penalty notification, you can send the area director a letter right after the inspection letting him or her know of your request. At the same time confirm your desire to participate in any formal or informal conferences, and to elect party status if the citation is contested.
Most violations are classified as either 'serious,' 'willful' 'other than serious' or 'repeated.'
Serious violation occurs when there is a substantial probability that the hazard could cause death or serious physical harm. Penalties can range between $1,500 and $7,000 for each violation classified as 'serious'. They are often toward the low end, however, because the area director can adjust the fines downward by as much as 95%, based on the employer's good faith efforts (whether they have a written health and safety program and generally "clean" workplace), history of previous violations, and size of business (smaller businesses can get large reductions).
A willful violation occurs when the employer is aware of the hazard, knows that it violates OSHA standards, but still makes no reasonable effort to eliminate it. A willful violation is "intentionally and knowingly" committed. Penalties range from $5,000 to $70,000 for each willful violation. An employer whose willful violation results in the death of an employee is subject to criminal prosecution, and up to six months in prison and $250,000 fine (or $500,000 if a corporation) if found guilty. Criminal prosecutions are rare, but can be very effective tools for mobilizing workers and deterring other employers. Unions should aggressively pursue prosecution where a death occurs.
An 'other than serious' violation applies to a safety hazard that is unlikely to cause death or serious physical harm. Penalties up to $7,000 may be imposed but are discretionary. Usually no penalty is assessed.
A 'repeated' violation is a violation that is substantially similar to one the employer was already cited for, even if at a different facility, in the previous three years. It carries a fine up to $70,000 for each violation.
Employers can also be cited and fined for falsifying records, reports or applications, and for violating posting regulations, including not posting the OSHA Notice, the Annual Injury/Illness Summary, or a Citation.
The Citation: What You Can Do
If no citation is issued, meaning OSHA did not identify any violations, and you think this is wrong:
Contact the Area Director and request an informal review of the decision not to issue a citation. You can include the reasons you think their decision is wrong. You can request to see the inspection file, including the inspector's notes, test results, and closing conference report, to see if there are any errors. Only the worker whose complaint initiated the inspection, or the Union or other authorized employee representative, can request a review.
A citation is issued, but you think OSHA has given the employer too long to clean up the hazard(abatement date):
File an appeal with the Area Director. You must do this within 15 days of the time that management receives its notice of citation. In your letter of appeal state which abatement period you wish to appeal (if there were multiple violations), and send it registered mail/return receipt requested. The OSHA area office will quickly consider your appeal. If it does not agree with you, your appeal will go to the Occupational Safety and Health Review Commission, which operates independently of OSHA. The three commissioners have the power to uphold, change or overrule any action OSHA takes, but it may take months to act. In the meantime, OSHA's original abatement period stands.
A citation is issued, but you are unsatisfied with how the inspection was conducted, the severity of the citation, some hazards were not cited, the penalty is too low, or other matters:
You can only file a formal appeal on the abatement period, but you may request an informal conference with OSHA to discuss any issues raised by an inspection, citation, notice of proposed penalty, or the employer's notice of intention to contest, or abatement period. Your employer will be notified of your request and invited to participate in the conference.
II. The "Informal Settlement Agreement"
Within 15 working days of the citation, your employer can set up a meeting with the OSHA area director to negotiate an "informal settlement agreement" seeking to modify or withdraw the penalty or citation, have the violation reclassified ("willful" to "serious", for example) or abatement date changed. The area director has the authority to agree to a settlement - revising citations, penalties and abatement downward - to avoid prolonged legal disputes and ensure speedier abatement.
The "Informal Settlement Agreement": What You Can Do
Your Union or affected employee will be notified of this informal conference and offered the opportunity to attend and to provide an opinion. You should plan on attending, and prepare your arguments/position in advance. Try to convince the area director to include the inspector in the conference since he or she is probably more on top of actual in-plant conditions than the area director. You can raise whatever objections you like, and participate fully in the negotiations, which is what this often is. If you choose not to participate, you forfeit your right to be consulted prior to any future decision related to the citation. If the employer objects to your presence, a separate meeting can be held for you with OSHA. Separate or private discussions are also permitted at the informal conference.
III. The Formal Appeal
If your employer is not satisfied with the area director's response to its informal appeal, it can file a formal appeal. (A formal appeal can also be filed immediately without going through the informal process first.) This "notice to contest" must be written, clearly identify the employer's basis for contesting, and sent within 15 days of receiving the citation. A copy of the Notice must be given to the Union, if there is one. If not, it must be posted or given to each unrepresented employee. The company does not have to comply with any contested part of the citation - fix the hazard, for example, - until its appeal is considered and a final decision is issued, unless it is an imminent danger situation. (If it is just contesting the penalty, it must abate.) An Administrative Law Judge employed by the Review Commission, will hold a hearing on the appeal and make a decision. An OSHA attorney will represent the agency and oppose any employer appeal.
The Formal Appeal: What You Can Do
You can participate fully in the hearings on the company's appeal of the citation, but to do so you must write a letter to the Review Commission informing them of your desire to "elect party status," or participate in the case. It is very important to do this, and do it as soon as your employer files its formal challenge. Actively participating in the case gives you the opportunity to argue against employer efforts to lengthen the abatement period or reduce the severity of its violation. You can even push for more severe sanctions. Your views will be seriously considered, and if the employer knows you will participate, they may even think twice before contesting. The union, as the "authorized employee representative," can declare party status, or, if there is no union, any worker exposed to the hazards in the complaint can elect party status "on behalf of affected employees." In either case, besides informing the Review Commission of your desire to elect party status, you should send a copy to the OSHA area director and the employer (certified mail/return receipt requested).
With party status you:
- receive copies of all documents filed in the case
- can request additional information from your employer
- can participate in conferences and pre-hearing settlement negotiations between OSHA and your employer
- can argue for a more serious violation, stiffer penalties, shorter abatement
- can present witnesses and evidence at the hearing, and cross-examine company witnesses
- can make oral and written statements
- can appeal an adverse decision by the judge to the full Review Commission, or beyond, to the US Circuit Court of Appeals, if necessary
Even with party status, don't assume that you will be completely included without further action on your part. Contact the area director and the Review Commission attorney and tell them you want to fully participate. Remember, too, that the vast majority of cases are settled prior to a formal hearing. Make sure the OSHA attorney knows what you want out of the negotiations and be prepared to argue for your position during the negotiations.
Safety or health hazards which lead to OSHA citations must be speedily corrected. This is called abatement, and the citation identifies a date by which the employer must abate each hazard. Employers are responsible for fixing the hazard, certifying to OSHA that they have done so, and informing workers and their Union about this. In some cases, OSHA requires additional documentation, including written abatement plans, progress reports, and proof of abatement, such as pictures or work orders.Unless the abatement period is contested, your employer must take steps to correct the hazard.
Even if management fails to contest an abatement date, it can still delay fixing the problem. As late as the day after the abatement "deadline," it can file a petition with the OSHA area director seeking a modification or extension of the abatement date. This is known as a Petition for Modification of Abatement. The petition must be posted at the workplace and the union notified. The petition must state what steps have been taken to comply, why full compliance is impossible, how much additional time is needed, and how workers will be protected in the interim.
Abatement: What You Can Do
You should first review the citation and note abatement requirements, including dates, hazards that need correction, and any additional documentation requirements. Make sure any movable equipment that has been cited is immediately posted with a warning about the hazard, and that a copy of the citation is post in the vicinity of any violation. If you think OSHA has given your employer too much time to correct the hazard, creating an unacceptable safety risk, you can file a formal complaint with the area director (see above, for more information on this)..
If your employer files a Petition for Modification of Abatement, and you disagree or feel the employer has not made a good faith effort to correct the hazard, you can object to the petition. You do this by writing to the Area Director, within 10 working days of the posting of the petition, or within 10 working days after an employee representative has received a copy. The petition, your objection, and other documents then go to the Review Commission for an expedited hearing process. If the union does not object, OSHA has 15 days to grant or deny the petition. (It does not go to the Review Commission).
Finally, since the procedure used by OSHA to verify whether an employer has abated the hazard usually relies on accepting the employer's word - no followup inspection occurs in most cases - workers should verify abatement themselves. Keep on top of what is happening, and notify OSHA immediately if you think the workplace changes have not really removed the hazard (for example: installation of ventilation equipment does not help air quality), or if your employer has not adhered to the abatement timetable.