Back in March we answered five frequently asked questions related to OSHA inspections. We received a lot of positive feedback about that post and several requests to address additional questions. Following up on that feedback, we will be adding additional FAQ posts as a regular feature of the OSHA Law Update Blog. In addition to the text responses to the FAQs, we will also provide a webinar link with audio and slides to provide more in depth responses to each question. Click on the image of the slide below to watch and listen to the first webinar response.
In this post we address a common question regarding the triggering events for an OSHA inspection. Specifically, our reader asked:
QUESTION: “My company recently had an OSHA inspection without any serious findings. What would put my company at risk for another inspection here, or at one of our facilities?”
The minute the file is closed on one OSHA inspection, there are several circumstances that can trigger a “programmed” or “unprogrammed” visit from an OSHA compliance officer at either the same facility or a related facility within the same company.
OSHA’s Field Operations Manual (at p. 9-3) lists ten criteria that will trigger a “unprogrammed” OSHA inspection. These criteria include:
- A valid formal employee complaint;
- A signed, written complaint of an employee alleging a serious safety violation;
- Information that a permanently disabling injury or illness has occurred and the hazard relating to that incident still exists;
- Information alleging an imminent danger;
- Information relating to an alleged hazard covered by a local, regional or national emphasis program;
- An employer inquiry is not adequately addressed;
- The employer has a history of violations or is part of the Enhanced Enforcement Program;
- A whistleblower has alleged discrimination for complaining about workplace safety issues;
- A minor issue is raised when an inspection has already been scheduled or begun for another reason; and
- Information gives reasonable grounds to believe a minor (under 18) is exposed to hazardous workplace conditions.
In addition to these unprogrammed inspections, there are several avenues through which a “programmed” inspection can begin. Programmed inspections are those inspections that are part of a “neutral inspection program” in which employers in certain industries are randomly targeted for inspections. If OSHA has targeted an industry for additional oversight, then an individual employer in that industry is more likely to be selected any given year unless they have been removed from the selection list. Under certain circumstances, employers may temporarily or permanently removed from the list for a programmed inspection if they meet the following criteria (set forth in OSHA Directive CPL 02-00-025 – Scheduling System for Programmed Inspections):
- “Safety inspection–Any comprehensive programmed or focused safety inspection or a substantially complete unprogrammed safety inspection conducted within the current or previous five (5) fiscal years.”
- “Health inspection–A substantially complete or focused health inspection was conducted within the current or previous five (5) fiscal years with no serious violations cited; or, where serious violations were cited, an acceptable abatement letter or a follow-up inspection has documented ‘good faith’ efforts to abate all serious hazards.”
Additionally, Section 3-14 of the Field Operations Manual states that “employers who participate in selected voluntary compliance programs may be exempted from programmed inspections.” These compliance programs include OSHA On-Site Consultation Visits, the Safety and Health Achievement Recognition Program, and the Voluntary Protection Program.
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