How to Prepare for an OSHA Investigation

I. Function and Utility of OSHA

1. Historical past and Applicability of OSHA

The Occupational Security & Well being Act of 1970 (“OSH Act”) was signed into regulation December 29, 1970. The Occupational Security & Well being Administration (“OSHA”) started operations on April 28, 1971. OSHA’s first requirements have been promulgated Could 29, 1971. The OSH Act was handed to guarantee, as far as attainable, each working man and lady within the nation secure and healthful working circumstances and to protect our human assets. See 19 U.S.C. § 651, often known as the Common Obligation Clause.   liteblue usps gov epayroll

The OSH Act applies to all employers and their workers in all fifty states, the District of Columbia, Puerto Rico and all different territories below federal authorities jurisdiction. Below the OSH Act, an “employer” means an individual engaged in a enterprise affecting commerce who has workers, however doesn’t embrace the US (not together with the US Postal Service) or any state or political subdivision of a state. 29 U.S.C. § 652(5).

OSHA laws apply both immediately by way of the federal OSHA program or by way of a federally permitted OSHA state program. Any state could submit a state OSHA plan, which the federal Secretary of Labor shall approve whether it is not less than as efficient because the OSH Act. 29 U.S.C. § 667. The next twenty-six states and territories at the moment have OSHA-approved security and well being plans: Alaska, Arizona, California, Connecticut, Hawaii, Iowa, Idaho, Indiana, Kentucky, Maryland, Michigan, Minnesota, North Carolina, New Jersey, New Mexico, Nevada, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Virginia, Virgin Islands, Vermont, Washington, and Wyoming.

Most states have adopted plans which can be equivalent to the federal requirements and have procedures just like the federal system. Nonetheless, there are some variations between the federal system and OSHA-approved states plans. This paper focuses on federal requirements and laws. For those who follow in a state with an OSHA-approved plan, try to be cognizant that your state could have barely completely different requirements and laws than these mentioned on this paper.

2. Who’s the Employer? The Difficulty of Multi-Employer Work Websites

Development websites typically contain a number of employers working alongside or with each other. The prospect thus exists for an employer’s violation of an OSHA normal to trigger harm to a different firm’s worker working on the identical job web site. OSHA could penalize an employer for exposing one other firm’s worker to a hazard. See Brennan v. OSHRC, 513 F.second 1032 (2nd Cir. 1975). In Brennan, OSHA penalized a subcontractor at a building web site for violating OSHA laws by leaving building supplies close to the sting of an elevated, open-sided ground, above staff employed by different subcontractors. On enchantment from the quotation, the US Occupational Security & Well being Assessment Fee (“OSHRC”) discovered no violation as a result of the subcontractors’ personal workers weren’t uncovered to any hazard. OSHA appealed the OSHRC’s discovering to the Second Circuit. The Second Circuit discovered that the Common Obligation Clause, which gives that employers should “adjust to Occupational Security & Well being Rules promulgated below the Act,” was not restricted to its personal workers’ publicity to a hazard. See Brennan, at 1037-38. The Brennan court docket held that an employer could also be cited if anybody in an space below that employer’s management was uncovered to a regulation violating hazard. See Brennan at 1038.

Subsequent to Brennan, the OSHRC has additional articulated an employer’s obligations to different employers’ staff at multi-employer building websites. The OSHRC previously adopted the precept established by Brennan in Anning-Johnson Co., four O.S.H. Cas. (BNA) 1193 (1976). The precept established by Brennan was expanded to all multi-employer work websites by one other OSHRC resolution. See Harvey Workover, Inc. 7 O.S.H. Cas. (BNA) 1687 (1979).

The OSHRC has additionally expanded its definition of the kind of motion at multi-employer work websites that employers could be answerable for when staff are uncovered to hazards. In Pink Lobster Inns of AM., Inc., eight O.S.H. Cas. (BNA) 1762 (1980), the OSHRC held that an employer that “could possibly be moderately anticipated to stop or detect and abate violations attributable to its supervisory authority and management over the work web site,” could also be answerable for OSHA violations which happen on the work web site. Thus, a common contractor, or different employer with management over a piece web site, could also be topic to quotation although its workers didn’t really trigger the hazard for which the OSHA quotation was issued.

The OSHA Subject Inspection Reference Handbook accommodates requirements for multi-employer work websites. See Multi-Employer Quotation Coverage, OSHA Instruction CPL 2-0.124 (December 10, 1999). The Subject Inspection Reference Handbook lists the next 4 classes of employers who’re topic to quotation:

A. The Creating Employer:

The Creating Employer is the employer that triggered a hazardous situation that violates an OSHA normal. An employer that does so could also be cited even when the one workers uncovered to the hazard are these of different employers on the work web site.


Employer Host operates a manufacturing facility. Host contracts with firm Okay to service equipment. Host fails to cowl drums of a chemical regardless of Okay’s repeated request that it accomplish that. This leads to Okay’s workers’ publicity to airborne ranges of the chemical that exceeds the Permissible Publicity Restrict.


Step One: Host is the Creating Employer as a result of it triggered workers of Okay to be uncovered to the air contaminant above the Permissible Publicity Restrict.

Step Two: Host didn’t implement measures to stop the buildup of the air contaminant. It might have met its OSHA obligation by implementing the easy engineering management of overlaying the drums. Having didn’t implement a possible engineering management to fulfill the Permissible Publicity Restrict, Host is citeable for the hazard.

B. The Exposing Employer:

An Exposing Employer is one whose personal workers are uncovered to the hazard. If the Exposing Employer additionally created the violation, it likewise could also be cited for the violation as a Creating Employer. If the violation was created by one other employer, the Exposing Employer is citeable if it: (1) knew of the hazardous situation or didn’t train cheap diligence to find the situation; and (2) didn’t take steps per its authority to guard its workers.

If the Exposing Employer has authority to right the hazard, it should accomplish that. If the Exposing Employer lacks the authority to right the hazard, it’s citeable if it fails to do every of the next: (1) ask the creating and/or controlling employer to right the hazard; (2) inform its workers of the hazard, and; (3) take cheap various protecting measures.

In excessive circumstances (e.g., immanent hazard conditions), the Exposing Employer is citeable for failing to take away its workers from the job web site to keep away from the hazard.

C. Correcting Employer:

The Correcting Employer is one who’s engaged in a typical enterprise, on the identical work web site because the Exposing Employer, and is liable for correcting a hazard. This normally happens the place an employer is given the duty of putting in and/or sustaining specific security/well being tools or gadgets.

D. The Controlling Employer:

The Controlling Employer has common supervisory authority over the work web site, together with the facility to right security and well being violations itself, in addition to require others to right them. Management could be established by contract or, within the absence of express contractual provisions, by train of management in follow. A Controlling Employer should train cheap care to stop and detect violations on a job web site. The extent of the measures Controlling Employer should implement to fulfill this obligation of cheap care is lower than what’s required of an employer with respect to defending its personal workers. Which means that the Controlling Employer just isn’t usually required to examine for hazards as often or to have the identical stage of data of the relevant requirements or of commerce experience because the employer it has employed.

II. OSHA Inspections

The OSH Act authorizes OSHA to conduct office inspections and investigations to find out whether or not employers are complying with requirements issued by OSHA for secure and healthful workplaces.

1. Inspection Precedence

There are 100 eleven million (111,000,000) workplaces lined by the OSH Act. See OSHA Publication 2098, 2002 (Revised). Since OSHA can’t examine each office lined by the OSH Act, it has established a system of inspection priorities.

A. Immanent Hazard

Immanent hazard conditions obtain prime precedence. An immanent hazard is any situation the place there may be cheap certainty hazard exists that may be anticipated to trigger loss of life or severe bodily hurt instantly or earlier than the hazard could be eradicated by way of regular enforcement procedures.

B. Catastrophes and Deadly Accidents

Accidents leading to a loss of life or hospitalization of three or extra workers obtain second precedence. The employer should report such catastrophes to OSHA inside eight hours of the prevalence.

C. Complaints and Referrals

Formal worker complaints of unsafe or unhealthful working circumstances and referrals from any supply a couple of office hazard obtain third precedence.

D. Applications Inspections

Inspections aimed toward particular high-hazard industries, together with the development business, workplaces, and occupations obtain fourth precedence.

E. Observe Up Inspections

Observe-up inspections to find out if the employer has corrected beforehand cited violations obtain fifth precedence.

2. Making ready for an OSHA Inspection

Inspections are usually performed with out advance discover. When discover is given, it’s usually given lower than twenty-four hours earlier than the inspection. Preparation for an OSHA inspection ought to subsequently happen properly upfront of OSHA’s arrival on the job web site. Counseling purchasers, the next solutions could also be helpful: