The purpose of OSHA's site-specific targeting (SST) plan is, in fact, to “target” employers with higher than average rates of injuries in certain industries. The program is in addition to any national and local emphasis programs and does not apply to the construction industry. The current national emphasis programs (NEP) focus on amputations, lead, crystalline silica, shipbuilding, trenching/excavations, petroleum refinery process safety management and combustible dust. OSHA currently has approximately 140 local or regional emphasis programs in effect.
States with OSHA-approved state plans are required to have their own inspection targeting systems and policies. These inspection policies and procedures must be at least as effective as federal OSHA's 2009 SST.
CREATING THE PLAN
OSHA collects injury and illness data through its annual Data Initiative Survey from 80,000 larger establishments (40 or more employees) in industries with historically high injury and illness rates. OSHA looks at days away, restricted or transferred (DART) and days away from work injury and illness (DAFWII) rates. The 2007 data that was collected in the 2008 Data Initiative Survey provides the basis for the SST-2009 program. The sites to be inspected will be those with DART and DAFWII rates that are considerably higher than the national average for their industry.
The following facilities will be placed on a primary inspection list and will be inspected unless an exemption applies: manufacturing establishments with a DART rate at or above 8.0 or a DAFWII case rate at or above 6.0 (3,100 sites); non-manufacturing facilities with a DART rate at or above 15.0 or a DAFWII case rate at or above 13.0 (500 sites); and nursing and personal care facilities with a DART rate at or above 17.0 or a DAFWII rate at or above 14.0 (300 sites) (formulae for calculating DART and DAFWII case rates may be found in OSHA Directive No. 09-05(CPL 02) ¶ X C,D). For comparison, the national DART rate for private industry for 2007 was 2.1 and the DAFWII case rate was 1.2.
If an OSHA area office inspects all facilities on its primary inspection list prior to the expiration of the SST-2009 plan (July 2010), it then will inspect facilities on its secondary inspection list followed by its tertiary inspection list. Secondary and tertiary facilities have injury and illness rates greater than some facilities in their industries, but less than those on the primary inspection list. In addition, some facilities that failed to answer the OSHA Data Initiative Survey also will be inspected.
Area offices will be responsible for making appropriate deletions from their list of inspections. For example, an establishment will be deleted from the inspection list if, within 36 months of the creation of the current inspection cycle, the facility received a comprehensive safety inspection or a “records only” inspection.
Nursing and personal care facilities (SIC code 805) will be deleted if, within 36 months of the creation of the current inspection cycle, they received an inspection that focused on ergonomic stressors, exposure to blood and other potentially infectious materials, exposure to tuberculosis and slips, trips and falls.
In addition, public sector employers will be deleted as well as employers participating with OSHA in a strategic partnership, the Voluntary Protection Program (VPP) or the Safety and Health Achievement Recognition Program (SHARP).
While the inspections under this plan generally will be safety (as opposed to health) inspections, health inspections will be conducted at nursing and personal care facilities. Health inspections also will be conducted when a safety compliance officer identifies potential health hazards at manufacturing and non-manufacturing facilities or when an inspection scope is broadened by the area director based on the prior inspection history of the particular employer.
If an OSHA inspector knocks, the employer should request credentials and ask for an opening conference to determine the reason for the inspection. A company representative should accompany the compliance officer at all times during the inspection. Injury and illness logs should be up to date and available for review. If a compliance officer takes a photograph, measurement or sample, the employer should do the same from the same vantage point or location.
The company representative also should be present during all management interviews and should debrief all employees following their interviews with OSHA. Any trade secrets should be made known to the compliance officer prior to the inspection walk-around. Employers have a right to refuse to allow an inspection without a search warrant, but a search warrant should only be required after consulting with counsel and in rare circumstances.
Being prepared for an OSHA inspection is similar to taking an open-book examination. Employers have access to all of the standards on which OSHA will “test.” The most often cited items are for violations of the hazard communication, lockout/tagout, respiratory protection, powered industrial trucks, electrical and machine guarding standards. All employers, particularly those on the SST-2009 list, should be certain their facilities are compliant with these and all other applicable standards.
Written programs, procedures and employee training need to be current. Where relevant, employers also should focus on the areas in which OSHA has developed emphasis programs. And, as stated above, employers should be certain their 300 logs and recordkeeping practices are consistent with applicable standards.
If an employer is going to be cited by OSHA, the citation must be issued within 6 months of the commencement of the inspection. Employers may request an informal conference with the area director within 15 working days of the receipt of the citation. At the conference, the employer should focus on any disputed items and specifically ask for a desired outcome.
OSHA has the authority to fine employers up to $7,000 for serious violations and up to $70,000 for repeat and willful violations. A repeat violation is one for which the employer previously has been cited or has been cited for a substantially similar condition or hazard, and the previous citation has become a “final order” of the Occupational Safety and Health Review Commission. A citation may become a final order by operation of law when an employer does not contest the citation, or pursuant to court decision or settlement.
OSHA will not issue a repeat violation if more than 3 years has passed since the citation was issued or abated, or in the case of a contested citation, the date of the final order of the review commission or the Court of Appeals decision. Any previously cited employer should review the former citations and confirm that all items remain abated.
A willful violation is one for which OSHA believes the employer either has demonstrated an intentional or conscious disregard for the OSH Act or a plain indifference to employee safety and health. For example, the review commission affirmed a “conscious disregard” willful violation of the bloodborne pathogens standard when a security company failed to provide the hepatitis vaccine to its employees in spite of knowledge of the standard's requirements that the vaccine be offered and repeated requests for the vaccine from personnel (the Barbosa Group Inc. d/b/a Executive Security, OSHRC, April 5, 2007, ¶ 32,877).
Penalty reductions and classification modifications frequently are offered at informal conferences. If an informal settlement is not reached, employers must contest the citation to prevent it from becoming a final order. Counsel usually is retained for this purpose. After a contest is filed, the case will be assigned to an administrative law judge with the review commission. An attorney from the Department of Labor's Solicitor's Office will defend OSHA. As in any other civil case, the case enters a discovery phase and may be settled or proceed to hearing. An adverse ruling may be appealed to the Occupational Safety and Health Review Commission and further to the United States Court of Appeals.
DO YOURSELF A FAVOR
Employers will serve themselves well by closely monitoring their injury and illness rates and maintaining levels below the national average to avoid being included in an OSHA site-specific targeting plan. Employers on the SST-2009 list should be certain they are compliant with all applicable standards, particularly those for which they previously have been cited by OSHA.
Patricia A. Poole is a partner with the national law firm of Baker Hostetler. She concentrates her practice in the areas of occupational safety and health, toxic exposure and workplace injury and illness matters. She may be reached at [email protected].