OSHA’s Been and Gone, Now What?

So, it’s rare but it happens, OSHA’s been and gone and now you have citations!  The latest Practical Safety Software Tools! LinkedIn Newsletter covers preparing for, and what happens on the day of an OSHA inspection.  This blog carries on from there.

Citation fine points

1. All sampling has errors caused by the equipment, media, application, documentation, and analysis. The errors caused by the equipment media and analysis, Sampling and Analytical Errors or SAE, can be quantified resulting in an upper and lower Confidence Limit.  For example, a well maintained and calibrated Quest Noise Dosimeter provides a confidence interval of + or – 2dB.  So a measurement, XdB, would be anywhere from XdB-2 to XdB+2.  Only when XdB-2 is at or greater than the Action Level can a violation be cited by OSHA.

So, if your 8 hour Time Weighted Average noise exposure is 85dBA OSHA cannot count it as an exposure “at or above” the Action Level of 85dBA because it could actually be anywhere from 83dBA to 87dBA.  In order to cite you for a violation the exposure would have to be 87dBA or above.

2. If an employee can’t answer a question that, according to an applicable standard, they should be able to answer it is a violation of “effective training” in x, y, or z. For example, “Where are the Safety Data Sheets?”
3. General Duty Clause citation is used when there is no OSHA standard and conditions include ALL of the following:
   1. A hazard is likely to cause death or serious physical harm.
   2. Employees are exposed to the hazard.
   3. It is a known hazard in the industry or has resulted in injuries in the past.
   4. There is a “feasible and useful method” to correct it.
4. Types of citations:
   1. De Minimus: a violation where the potential for injury is practically non-existent and does not involve a fine.
   2. Other Than Serious: conditions that have an adverse, direct, and immediate relationship to the safety and health of employees but probably won’t kill them or cause serious physical harm.
   3. Serious: the condition can cause death or serious physical harm. In Section 17(k) of the OSH Act it states that a Serious violation exists when

“there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.”

1. Willful: is cited when the employer has demonstrated either an intentional disregard for the requirements of the OSHA Act or indifference to employee health and safety. If there is a standard that applies to your workplace lack of knowledge of that standard will not get you out of a citation.  It’s like driving 70mph because you missed the 55mph sign indicating a drop in the speed limit will still get you a ticket.
2. Failure to Abate: the condition that had been cited before still exists at the time of the follow up inspection Note: any new violations found during this inspection will be cited as well.
3. Failure to post the OSHA notice of violations, or a copy of it, at or near the place of each violation cited to notify employees of the hazards to which they may be exposed. This notice must remain in place for 3 days or until the hazard is abated, which ever takes longest.
4. Repeat: if the employer has been cited by OSHA for the same violation in the past, or a substantially similar condition, in the past 5 years.  Substantially similar could mean cutting the grounding prong off the plug for an electric hand tool citation during the first visit and a subsequent visit finds a grounding prong cut off an appliance at the next visit.
5. Fines are now adjusted for inflation, these are the fine amounts as of January 7, 2025:
   1. De Minimus: No Fine
   2. Other Than Serious: $16,550/violation
   3. Serious: $16,550/violation
   4. Willful/Repeat: $165,514/violation
   5. Failure to Abate/failure to correct: 16,550/day from the abatement date until the hazard is abated.
   6. Failure to post: $16,550

Be sure to copy each violation and post it “at or near” the site of the location for the hazard cited to notify employees of the hazards to which they may be exposed.  This post must remain in place for 3 days or until:

1. There has been a successful contesting of the violation so it has been removed.
2. The hazard has been abated and you are now in compliance with the cited standard.

 Contesting Violations

• The Variance Process: the employer provides an alternative method that is at least as protective as the required abatement method. A written application must be sent to the appropriate state or federal OSHA office.  There are 4 types
• • Temporary, allows equivalent protection while engineering controls can be completed.
  • Permanent, provision of evidence that demonstrates exactly how the alternative method is as good, or better, at protecting employees from the hazard.
  • Experimental
  • National Defense
• :The Fine Process
  • OSHA cites a violation and provides a penalty dollar amount and abatement due date
  • Informal conferences (29 C.F.R. 1903.20 “for the purpose of discussing any issues raised by an inspection, citation, notice of proposed penalty, or notification of intention to contest.”), also called Settlement Conferences, can be held regarding the results and required actions with the CoOSHO and/or Area office within 15 working days of receipt of the notice of citation(s).
    • Don’t get chatty, they can add more citations.
  • Fines assigned by the Occupational Safety and Health Review Commission (OSHRC), an independent administrative court that conducts hearings, reviews evidence and Administrative Law Judges render decisions.
  • Employers have 15 days to electronically notify the OSHRC to contest the findings with or without an informal conference.
• The abatement process:
  • Any air or noise monitoring by a consultant who is not certified by the American Board of Industrial Hygienists as a Certified Industrial Hygienist, will not be acceptable.
  • Any air or noise monitoring results with a lower confidence limit that is not above the exposure limit cannot be cited as a violation.
  • While starting to abate a hazard identified by a CoSHO while they are onsite looks good it can still be cited and fined.
• Follow up inspections to verify the hazard has been abated.
  • If the CoSHO will be conducting sampling to verify the new controls are effective it is recommended that you hire a Certified Industrial Hygienist to conduct side by side sampling for comparison.

Be sure to check out our LinkedIn newsletter to find out what happens on the day of an OSHA inspection, can you deny entry?  What are your rights?