Will OSHA Conduct an Inspection after an Employee Complaint?

OSHA will make inspections of a workplace for a variety of reasons, including following a worker injury and always after a worker’s death.

Inspections may also occur randomly or part of a program aimed at a particular industry that OSHA has decided to target.

The other way an inspection may occur – and the main focus of this article – is if an employee contacts the agency to complain about possible safety violations.

These complaints may or may not result in an inspection of your workplace based on certain conditions, including the timing of the complaint. Under OSHA regulations, a worker can only report an alleged violation.

After OSHA receives a complaint it will decide whether it is worthy of an on-site inspection.

The agency has a set of criteria, at least one of which must be met in order for it to conduct an on-site investigation or an investigation that includes sending the employer a questionnaire to determine if it is complying with its safety regulations.

A current employee or employee representative must submit a written, signed complaint:

  • That includes enough details to help OSHA assess whether the employer is violating its safety regulations or if there is an imminent danger of physical harm to employees.
  • That alleges the worker was injured or made ill by a hazard that is still present in the workplace.
  • That claims an imminent danger to workers exists in the workplace.
  • About a company in an industry that is part of an OSHA local or national emphasis program, or a high-hazard industry that is the focus of such a program.
  • Against an employer that has been cited in the past three years by OSHA for egregious, willful or failure-to-abate citations.
  • Against a facility that is scheduled for or already part of an OSHA inspection.

 

If any of these conditions are not met, OSHA will typically make a complaint inquiry by phone or e-mail.

 

How a complaint inquiry works

If, for example, one of your employees contacts OSHA to complain that you are not using proper lock out/tag out procedures when cleaning certain machinery, the agency would likely contact your company.

It would tell you about the alleged hazard and ask that you assist in determining whether a hazard or violation exists.

During that first point of contact, the agency would ask that:

  • You promptly investigate to see whether the violation does indeed exist and that if it does, you abate the hazard to ensure employee safety and regulatory compliance.
  • After investigating, you document your findings and detail what kind of corrective action you took or are undertaking.
  • You post a copy of the complaint letter from OSHA in a conspicuous area so that all of your employees can see it.

 

OSHA usually requires that you respond with the results of your internal investigation and provide the report of findings and action taken within five days of being contacted by the agency.

If you don’t respond to the initial contact, do not provide a report within five days or if OSHA deems your response inadequate, it may then decide to inspect your facility.

OSHA will also provide a copy of your response to the complaining employee. If the employee thinks you have not made the corrections or have not been honest with OSHA, they can ask the agency to conduct an on-site inspection.

 

Silica Safety Enforcement Delayed for Construction Industry

Cal/OSHA has delayed enforcement of its crystalline silica safety standard for the construction industry for another three months to ensure the California rules are in synch with federal rules on the dangerous airborne matter. The move came after Fed OSHA announced April 6 a delay in adoption of the crystalline silica standard for the sector “to conduct additional outreach and provide educational materials and guidance for employers.”

The silica rules have already been in effect for general industry since 2016 and the delay in enforcement is only for the construction industry. Enforcement for the construction sector was slated to start June 23, but that’s been changed to Sept. 23 under the new order. Under the new silica standard, the permissible exposure limit is 50 micrograms per cubic meter of air, compared to the old standard of 100. The California standard is similar to the federal standard, which the industry is challenging in a federal lawsuit. One outfit, the American Chemistry Council, wrote to the Cal/OSHA standards board that the 50 micrograms level is unnecessary and that the current standard, in place since 1971, has markedly reduced the cases of silicosis.

Industry has complained that the cost of complying with the new standard for employers nationwide will be about $6 billion, although Fed-OSHA says it will cost $371 million for employers to fall in line. The sticking point for the federal construction silica rule is that it requires wet cutting of silica-containing materials to reduce the chances of particles in the air. The California rules allow for wet cutting and dry cutting with vacuum saws that suck in the particles before they escape into the air. Contractors would rather cut dry rather than wet.

Fed-OSHA’s requirements were also scheduled to take effect on June 23, but the agency announced that implementation would be delayed by three months to give industry a chance to provide data showing that dry vacuum cutting is just as safe in reducing crystalline silica dust as wet cutting. While Cal/OSHA’s move only delays enforcement, the silica rule is already on the books and employers should comply with it.

All construction employers covered by the standard are required to:

  • Establish and implement a written exposure control plan that identifies tasks that involve exposure and methods used to protect workers, including procedures to restrict access to work areas where high exposures may occur.
  • Designate a competent person to implement the written exposure control plan.
  • Restrict housekeeping practices that expose workers to silica where feasible alternatives are available.
  • Offer medical exams – including chest X-rays and lung function tests – every three years for workers who are required by the standard to wear a respirator for 30 or more days per year.
  • Train workers on work operations that result in silica exposure and ways to limit exposure.
  • Keep records of workers’ silica exposure and medical exams.

 

If you have not started complying, you should get your new safety protocols in place now. You have an additional three months to do so.