Ihab Saad – Inspections, Citations, and Penalties
AI: Summary ©
The speakers discuss the inspection process for construction sites, emphasizing the importance of identifying hazards and providing subpoenaes for access. The inspection process is designed to identify work history, verify employment credentials, and establish potential violations of standards. The focus inspections will have three different stages, with the opening conference, inspection itself, and the closing. The compliance officer is going to allow the compliance officer to access the construction site without delay, and the inspection sequence is going to have three different steps. The speakers emphasize the importance of taking photos and recording records for the inspection process, and the importance of being notified of potential violations and a de minimis violation. The focus inspections are limited to safety and health programs for employers, and employers must implement a safe work program to reduce exposure to hazard and increase the chances of workers being exposed to it.
AI: Summary ©
Music. Hello again. Today we're going to talk about inspections,
citations and proposed penalties under the OSHA act and under OSHA
regulations, the 29 CFR 1903, so
first of all, we're going to talk about the different types of
inspections.
We have, general inspections that are scheduled, which are random
inspections scheduled by OSHA and the contractor or the site does
not know about it in advance.
There is a complete inspection. We're going to discuss it in a
little while. So if an employee, for example, complains about
something on site that can cause any hazard or danger or accidents,
they can notify OSHA, and OSHA would respond and come for
inspection
a post incident, incident inspection in case of a fatality
or three injuries from the same event, from the same accident.
OSHA has to come and inspect
and a referral news media, fire department or public if, for
example, someone driving by or passing by sees a situation on the
construction site that can cause danger to the employees, to the
workers on that construction site. They can notify OSHA directly,
whether that's a media or a just regular citizen, they can notify
OSHA and OSHA is going to respond to investigate
or a special emphasis, if there's a focus area for OSHA and OSHA
focus is that here, or that on a certain topic, or a group of
topics, like the focus four that we're going to talk about, or like
silica, for example, then OSHA is going to have a focused
inspection, or targeted inspection, to investigate,
investigate this particular issue.
And as I just said, the focus inspections the four main hazards,
or the focus four, which are the fall protections caught in between
electrocution and hit by or struck by,
and the last one is a follow up inspection. So in case OSHA comes
for a random inspection and they find a certain violation, they
would give an abatement time for the contractor to fix that
problem, and OSHA will come back after the end of that abatement
period to inspect whether that issue was taken care of or not.
So filing a complaint. Who can file a complaint and how should it
be filed? Any employee may file a complaint to OSHA. Anyone working
on the construction site that might be affected negatively by a
hazard, they may call OSHA or contact OSHA, the complaint goes
directly to the area director, and the area director would notify a
compliance officer to go and inspect and that complaint must be
in writing,
so would the area director respond to every complaint sent to him or
her? The answer is no. The area director may or may not take
action based on the
severity of the complaint, or the seriousness of the complainer or
the complaint company,
a copy of the complaint goes to the employer so that they would
know exactly that there's a complaint that has been filed
against them. And in this case, by the way, it does not have to
include the name of the complainer, because of the
Whistleblower Act, which protects the identity of the employees on
the site for fear of retribution.
So the copy goes to the employer if an inspection takes place,
OSHA has the authority to inspect work sites. That's a general
premise, and they don't have to give an advanced notice. So most
inspection are conducted without advance notice, unless it's out of
the regular work hours, in this case, just to ensure that there's
someone on site to meet with the compliance officer or the
inspectors, they're going to notify the site in advance.
The exceptions to be no advance notice rule are imminent danger.
In case of imminent danger again, OSHA might modify the site we're
coming immediately to investigate that inspections after hours, or,
as I said, out of regular work hours, to assure the presence of
Representatives, and when the area director believes that it's
needed. It's needed to give a notice to the site that there's
going to be an inspection.
The OSHA officers are authorized to enter the job site without
delay,
to inspect and investigate compliance, to the standards, to
questions employees and in private.
And to review the records. So this is the right of the OSHA inspector
or the OSHA officer to access the construction site. Well, can they
be denied access to the construction site? The answer is
yes. Although they can come back with a subpoena, they have the
subpoena power. They can come back with a court order forcing the
contractor to allow them on site, and that's going to create some
bad blood between the contractor and OSHA, which is definitely not
advisable for any contractor.
An employer can refuse to permit the compliance safety and health
officer. From now on, we're going to call it Kosho. The Kosho from
entering the job site. If this happens, the ko must terminate the
inspection or confine the inspection to other area. The OSHA
officer will immediately relate the situation to the OSHA area
director, and again, most likely, there's going to be a court order
allowing the Kosho to access the site any location, anywhere.
The priorities for inspection, the first priority is imminent danger
that gets the highest attention of the area director, sending someone
immediately. If they get a complaint that is an imminent
danger on site, which may result in fatalities or severe injuries,
they will respond immediately by sending a an inspector. The second
priority is investigating of investigation of fatalities and
accidents resulting in hospitalization of three or more
employees again, following imminent danger. This is the
second highest priority. The third highest priority is employee
complaints. Again, as we mentioned before, the area director may
respond to that complaint or may disregard it, depending on its
seriousness. So that comes as the third priority. The fourth
priority is programmed inspections. OSHA would have a
schedule of their planned inspections in advance, so
following that schedule, and then the fifth priority is follow up
inspections, as I said, before, after
filing a citation or a violation against the contractor, they would
give the employer or the contractor a an abatement period,
after which they will come back to investigate and make sure that the
mistakes were correct. So
now the inspection inspection sequence, there's a pre planning
on behalf of OSHA, so OSHA reviews the company's history of citations
to know what kind of track record do they have, and then they may
film or video from off site if they suspect something wrong is
going on on site, or if they're responding to a complaint, for
example, that's not imminent danger.
And then the third step is the compliance officer must show
credentials. So upon appearing on site, the Kosho is going to show
their identity and
announce that they're coming to investigate or they're coming to
inspect, and what kind of inspection are they going to be
performing?
The kosher will require request entry and explain the purpose of
the visit that's upon arrival on the work site.
And then, once on the work site, the investigation or the
inspection itself, is going to have three different steps. The
first one is going to be the opening conference. The second one
is going to be the inspection itself, or the walk around the
inspection. And finally, at the end of the inspection, there's
going to be a closing conference. We're going to talk about the
components of each one of these. So with the opening conference,
the compliance officer is going to announce what's the scope and
identify what's the scope and type of the inspection. Again, if it's
imminent danger, if responding to a complaint, if it's pre planned,
and so on.
And they're going to look at the records on site. So again, records
have to be kept in an accessible place where the Kosho can review
them upon visiting the site, including any records and forms
related to accidents or injuries on site. And we're going to talk
about these forms in a short while. And they are going to look
at the Material Safety Data Sheets, for example. They're going
to look at the personal protective equipment. They're going to look
at a training record for the employees on site. How many times
have they have they been trained? What kind of training have they
been receiving,
and whether it's going to be a focus inspection or not? So if
it's a focused inspection, they're going to focus primarily on fault
protection, for example, or on electrocution and so on or on. All
four focus four at the same time,
and the Kosho is going to meet with the subcontractor,
contractors and the subcontractors, with
representatives of these different entities to arrange for the next
step, which is the walk around, around the site to investigate and
to inspect.
The walk around the inspection, the kosher will tour the job
facility, looking for.
Hazards and with interview employees, and then we'll collect
photos and videos and samples or measurements just to make sure. So
for example, if we're talking about a certain height for fault
protection, they're gonna measure they're gonna measure the
guardrails and the handrails. They're gonna measure different
things to make sure that they're complying with the code. The
employer should also take photos from the same point and from the
same perspective of the compliance officer, because later on, if they
want to have a defense against a certain citation or a penalty,
they're going to prove that through the same pictures. So it's
important for the employer to take the same photo as OSHA from
several viewpoints to prove the rights.
After the inspection is over, there's going to be a closing
conference the compliance officer is going to point out any
potential violations of the standards and establish abatement
dates for the correction.
In case of imminent danger, if the compliance officer concludes that
imminent danger exists, the Kosho must immediately tell the employee
and the employer of such danger, and
the immediate action may not prevent a citation from being
issued. For example, if the sides of the excavation are not properly
supported and the Kosho feels that there might be a cave in which
might cause accidents, and that can be imminent danger if there
are people working in the trench, if they notify the employer, and
the employer takes immediate action, still, that does not
negate that they're going to be cited for their neglect of taking
care of that without being notified by the potion. The
decision to issue a citation, the kosher is going to write the
report, and the area director is going to review the report. The
area director may consult with the regional solicitor, and then may
decide whether to issue a citation or a notice of a de minimis
violation. A de minimis violation is a violation that does not
require any penalty or any citation. It's just going to be a
warning to the contractor pay attention to that particular area
so that you do not cause any problems there.
The Area Director is the one who issues the citations and not the
cosho just writes the report, and it's up to the area director to
make a decision whether to issue a citation or not.
The citations must be issued within 180 days of the visit of
the inspection. If 180 days pass, which is six months pass after the
inspection, and no citations issues is issued, that's it.
You're not going to receive a citation for that particular
complaint or issue
an informal conference. The employer can ask for an informal
conference within 15 days to
object to the citation or to appeal that citation,
the employer must either correct and pay if they acknowledge the
citation or contest the citation. Again, all of that is within the
15 days.
Types of citations, not all citations are equal. There's
something called a serious citation, which is gives a high
probability of death or serious injury. If that exists, then it's
a serious citation, and then the other than serious, which would
not cause death or serious injury.
Of the serious, though the highest one is going to be the willful
where death or serious injury could occur and the employer
either knew of it or should have known that the hazard existed. So
for example, a an owner has an employer, has employees working on
a an elevated slab, without having any fault protection, without
having any harnesses, without having the proper handrails and
guardrails and so on. Then obviously they should have known,
because this is part of the code that they have to comply with. So
this is going to be a willful violation.
Even worse than that is going to be the criminal, willful, flagrant
disregard for safety, if they intentionally expose their
employees to hazards that might result in fatality or serious
injury.
Another type of citation is for repeat violations, a re inspection
within three years and a similar similar violation is found.
Remember when the Kosho gives the citation or issues the report and
the
area director issues the citation again. The Area Director is the
one who issues citation, the kosher just writes the violation
and recommendation for that citation. They're going to give an
abatement period. If, after the abatement period, that problem has
been corrected, that's fine after the following follow up
inspection. But if within three years of that initial citation, it
is repeated, then it becomes a repeat citation and has a higher
penalty failure.
To abate. If you are given a certain time to abate that hazard
on site, and you do not fix the problem, you do not appeal it or
ask for an extension, and you do not abate it within that period,
then failure to correct is going to be a citation.
The citations must be posted. They are going to be posted on site. To
add insult to injury. They have to be posted on site so that the
visitors or the employees would know that this is not a safe
employer.
It has to be posted on site where employees report to work each day,
so it's going to be visible each day, so that everyone would know
what they have been cited for, and they would pay more attention
some types of penalties
per event or occurrence. So for example, if you have 10 employees
who have been exposed to that hazard, is going to be that
penalty time stand. So other than serious, it can be up to $7,000
from zero, up to $7,000 if it's de minimis, is going to be zero, and
then up to 7000
serious, up to 7000 willful, up to $70,000 per occurrence. Criminal
will fall up to 500,000
and it can be repeated twice, five times, 10 times, etc. Failure to
abate is going to be up to 7000 per calendar day for up to a
month. So a maximum of $210,000
in addition to the financial penalty there's there might be
also jail time. So in case of willful that results in death,
it's up to $10,000 plus six months in jail, giving advance notice. If
someone gives advanced notice to the site, telling them about the
planned visit by OSHA, it's up to $1,000 plus six months, and giving
a false statement up to $1,000.06
months as well.
Failure to report the fatality. Fatality has to be reported within
24 hours, failure to report the fatality, $5,000
failure to post citation, as we mentioned, it has to be posted at
a place where every every employee can see it, where they report to
work every day. Failure to post the citation, $3,000
and failure to post the 300 lock, which has the lot of the accidents
or injuries and so on. $1,000 per case egregious, the penalty amount
multiplied times the number of employees exposed, and that can be
a huge sum.
At this time, OSHA cannot use the egregious policy due to court
decision. However, they have appealed this. Some some employers
have complained about the egregious penalty, but OSHA is
appealing that, so it has not been finally decided yet.
The penalties can be adjusted up or down based on the gravity of
the violation. Of course, the more severe, the higher the penalty the
size of business. If it's a small business business, there's going
to be a sort of an excuse given to a certain extent. But if it's a
large business, means that more people are going to be exposed to
that hazard. So it's going to be very serious good faith of the
employer if the employer shows that they have a good track
record. And that was something that would just overlooked it was
not intentional, and the history of previous violations, whether
they have been cited for the same issue before, and how fast they
responded and they complied within the abatement period, and so on
and so forth.
So the adjustment based on the gravity of the violation, whether
the severity is high, medium, low or minimum. We talked about the de
minimis, for example, and the probability of occurrence. Can it
occur again? So greater or lesser probability, the number of persons
exposed, the more people exposed, definitely, the more the penalty
is going to be. And the frequency of exposure, if it's something
that they are exposed to every day or every hour of the day, then
again, that's going to result in a higher penalty and other factors,
including, again, how responsive that employer is going to be.
The adjustment based on the size of business. For small employers,
if they have one to 25 employees, they can get, say, up to 60%
reduction. For 26 to 100 employees, up to 40% reduction,
401 to 250 employees up to 20% reduction, and they get no
reduction whatsoever if they have more than 251 employees, because,
again, there are more people who are exposed to that hazard
based on good Faith, up to 25% reduction for written and
implemented safety and health program. If you have a good safety
program and you show real efforts in implementing it, then you can
get up to 25% reduction and up to 15% reduction for written safety
and health program with some deficiencies, if it's not a
perfect program, but at least you're.
Showing the good faith and the good effort
based on history of previous violation, a reduction of 10%
shall be given to employers if they had no serious violations, no
willful violations, or no repeat violations in the past three
years. If you have any of these, you do not get any reduction in
this area
the focus inspections are the ones that focus on four main hazards
causing 90% of all construction fatalities. That's why they called
the focus four. The first one is false, so falls from floors, for
platforms, roofs, etc, that forms up to 1/3 of all
fatalities in construction. The second one is struck by by falling
objects, by vehicles, etc. So, for example, a vehicle is backing up
and not having a siren or a warning sound, so it might hit
someone, something falling from
higher level, hitting someone sending underneath it, that's
about 22% of the fatalities, caught in between, like cave ins,
for example, in case of working in a trench, that's about 18% of the
fatalities. And electrical or electrocution by overhead lines or
by hand tools, that's up to 17%
of the fatalities
The purpose for a focused inspection is for the Kosho to
spend less time with safe companies and more time with other
companies. So if you are a company that has a good track record, that
has a good safety program, that is implementing that safety program,
then you're not gonna get as frequent visits from Kosho as
someone who does not have all of the above. So the focused
inspections are shorted inspections, just to make sure
that you are implementing everything that you have in your
program. To qualify for a focused inspection, you must have a
written safety program, and that should be implemented by a
competent person. Later on, we're going to discuss in detail what is
a competent person. The
focused inspection, as we mentioned, are limited
inspections. Apply only to safety. They do not have any health
issues. Apply only when there's a single controlling contractor.
We're going to talk later on about the different types of contractor,
who is a controlling, who is causing, who is correcting, etc,
who is exposing, if not eligible, stand up, inspection is going to
be performed. So this is the focus inspection is a benefit given to
good performing employers. A 25% good faith adjustment may apply to
penalties, as we just mentioned, because already, since you're
gonna have to focus the inspection, you have established
that you have a good safety program and you have a competent
person to apply it, then you would qualify for the good faith
adjustment.
All right, now we're gonna look very quickly at some review
questions for what we have discussed here in this lecture,
true or false, the contractor cannot refuse entry to the OSHA
compliance officer. True or false, this is false because the
contractor can refuse but it would be a big mistake.
With a good safety and health program. The reduction in penalty
can be up to what percentage we mentioned two different types. One
is 25% if you have a good program and a competent person to
implement it, and 15% if you have a program that has some
deficiencies,
the penalty for a willful criminal violation can be up to how much
and who issues the citation.
So the first one again, false. You can diffuse second one anywhere
between 25 and 15%
third one, up to $500,000
who issues the citation we mentioned that is going to be not
the Kosho, but the area director,
alright. So basically, this is our topic today about citations,
penalties and inspections. See you in another lecture you.