When OSHA knocks, be prepared with answers

COLUMBUS—If OSHA comes calling, companies need to be prepared with a plan.

That was the message from Nelva Smith, an attorney with Washington-based Steptoe and Johnson L.L.P., the main sponsor for this year's Environmental, Health and Safety Summit conducted by the Association for Rubber Products Manufacturers and the Manufacturers Association for Plastics Processors May 24.

The two-day affair at the AC Marriott Downtown Columbus represented the first in-person gathering since the pandemic began, with the last summit conducted in 2019.

The conference drew about 50 representatives from plastics and rubber manufacturing and processing firms from across the country.

"How can you keep your employees safe so they can get home to their families every day?" said Kaitlyn Triplett, managing director at ARPM, in her introduction of Smith.

Smith is an advocate for clients in the automotive, aviation, construction and manufacturing industries, with an emphasis on OSHA cases.

"I know OSHA is everyone's favorite topic at 8 in the morning, but here we go," Smith said of the federal agency, charged with the investigation and penalty phases for workplace injuries.

However OSHA gets into a company—via an unannounced stop, by warrant because there was a workplace injury or via a report by another federal agency, like the EPA—the problem can be traced to several origins.

Often, Smith said, employee buy-in is an issue in implementing best safety practices, and other times the problem can be accountability at the management level or the warehouse floor.

In other cases, safety policies are not properly communicated during onboarding.

"And the penalties for non-compliance keep going up every year," Smith said, noting that "serious" and "other-than-serious" findings increased to $15,625 per instance in 2023.

"Willful" and "repeat" penalty instances increased to $156,259 per violation, Smith said.

And the federal government has introduced a new initiative within OSHA known as "instance-by-instance," which includes certain types of violations which the agency deems "high-gravity," serious incursions of OSHA standards.

"This is significant, as it represents a departure from previous OSHA policy, which only applied in 'egregious' and 'willful' cases," Smith told the audience. "Now, OSHA is not required to show that the employer intentionally disregarded health and safety standards or that the employer was plainly indifferent to safety and health requirements.

"This and group violations—as OSHA urges enforcement personnel to refrain from grouping violations together, especially if they are distinct and different—can result in a lot of money in penalties," Smith said.

For example, the instance-by-instance and grouping violations, which took effect March 26, may be applied when the OSHA standard allows for them.

If there is a lathe machine or mechanical power press in a facility, OSHA might come in and issue a citation for that instance.

However, the company may have 20 such machines—and this means OSHA can hit a company with 20 citations.

"This is looser than it used to be," Smith said. "What I mean by that is that you had to be a really bad actor before to warrant a penalty.

"Now, the violations do not have to be so egregious, and a company does not have to be a bad actor. It can just be a compliance officer on a power trip or in a mood.

"Whatever the reason, OSHA seems to be doing this more. They have a lot of leeway with this, and it is something to consider."

Other actions from the current OSHA administration represent "low-hanging fruit," Smith said, as they represent "other ways to rack up some money."

Included in the new standards are workplace stress, bullying and violence (currently in the small business review step); a hiring increase of approximately 227 inspectors at OSHA since 2021; and an emphasis on increased whistle blower reports.

"The current enforcement environment has OSHA concentrating on machine guarding, powered industrial trucks and fall protection, as well as the amputation report rule," she said.

To illustrate this, Smith said Dollar General has been issued more than $15 million in fines and has had more than 180 inspections at stores nationwide.

And at a Cleveland plastics firm where a worker fell to his death, the general contractor ($154,696) and the balcony installer ($31,252) both were fined.

Of the top 10 standards cited by OSHA as justification for penalties, hazard communication ranks at the top.

"The employer must inform its employees of the hazards of the chemicals that are used in the business, even if they are 'household use' chemicals," Smith said. "The employer also must have safety data sheets on hand from the chemical manufacturers or distributors and make them available for employee review.

"And I cannot tell you how many times I have interviewed clients and heard, 'I don't have any idea where the safety data sheet is,' or 'I couldn't find it,' or that it is not accessible in some way.

"The key is knowing where the safety data sheets are."

Conversely, there are a number of oft-cited employer defense strategies when workplace injuries do occur, Smith said.

The first—employee misconduct—typically alleges that the employee ignored training about hazardous materials or PPE, and that the initial safety training was adequately communicated to said employee.

"Has the employer disciplined this same employee on similar issues?" Smith asked. "If the employer took reasonable steps to discover noncompliance, that can play in their favor."

And training remains paramount—even one slide shown during onboarding can help a company's case against exorbitant fines.

"Do you train people on the forklift? Do you train the right people on the forklift? All of these things depend on different situations," Smith said. "And as a matter of policy, I would urge you to expect these things to happen."

OSHA wants to see a rule.

" 'Be aware of your surroundings' can be too general," Smith said. "You likely need to be more specific ... having multiple avenues where you can show you communicated safety policies and rules really helps.

"You have to go further with this than walkarounds. Know the rule, communicate the rule and discipline the rule infractions."

Smith offered some advice when working with OSHA to make the process go more smoothly—and perhaps more cheaply.

"With safety training and planning, it needs to be more than boilerplate training, especially on the warehouse floor," Smith said. "It needs to be catered to your facility. And document things well, always."

When coming for an inspection, OSHA does not have to give advance notice. They can come in via employer consent or by warrant.

The four area OSHA offices in Ohio are in Columbus, Cleveland, Toledo and Cincinnati.

"And when they arrive, always request a compliance officer's credentials," Smith said.

The opening conference and conversation should be conducted in a separate, quiet area.

"Ask for the reason for the inspection right away," Smith said. "Most importantly, have an inspection plan in place and train the team in this plan."

If the compliance officer takes an inspection tour, accompany them, ask questions and take notes the entire way.

"And never agree with a statement made by a CO," Smith said. "Just say that you will take things under consideration or that you will look into it."

Finally, she said, get all requests for documents in writing from OSHA.

"The bottom line is that you want to be prepared when OSHA comes to your door," Smith said.

As audience members offered their own anecdotes with OSHA—about two-thirds of the room of 50 people raised their hands when asked if they had experienced an OSHA inspection—Smith reiterated that preparation is key.

Know who is going to say what, who is going to take pictures and who is responsible for the reporting and record-keeping, she said.

"Where OSHA can find things, they will—believe me," Smith said. "Be ready and have a plan in place. If you have never been part of an OSHA inspection, these are the tips I can offer.

"You cannot just ask them to come back next week. Of course, if I am involved directly, it probably means things have already gone downhill."