Ihab Saad – Inspections, Citations, and Penalties

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.