Thursday, November 03, 2011

How to survive a visit by OSHA

As fines grow and enforcement gets stricter, construction and agriculture businesses are prime targets for the Occupational Safety and Health Administration.
"Nebraska is one of the worst states for fatalities in these two industries, so if you're in construction or ag and you haven't been hit yet by OSHA, you probably will be," Teague Lottman told about 40 people - mostly business owners and managers - during a First State Bank and Trust University session last week.

Lottman, an Inspro Agribusiness agronomy claims specialist and loss control specialist, said he's seen higher fines and more aggressive enforcement efforts from OSHA.

"We've seen that this year big time," he said. "The higher ups have this mentality that if you own a business, all you care about is profit at the cost of your employees' safety, that's how they think. Here in the Midwest we're not like that, but that's the mentality they have. When they come out to your business, that's what we've got to deal with."

Lottman said he makes four or five presentations a year and talks to individual business owners on a weekly basis to help them prepare for and survive OSHA inspections.

"These fines are putting small business out of business," he said. "They want to comply, they don't want their employees to get hurt, but I've had some older contractors that just went ahead and retired because of the fear of OSHA.

"I think most companies do things safely, but they don't document that they do it safely, so they have no proof. That's the big thing; document what you're doing," he said.

OSHA will inspect a business or job site for several reasons, Lottman said, including incidents of catastrophic or fatal accidents, employee complaints, or high hazard industries.

When OSHA determines imminent danger is present, "It's just like the police and probable cause, they have the right to come right on into your place, whether it's a job site or a work place, and they can do a full-blown inspection and there's not a darn thing you can do about it," Lottman said.

Employers, he said, have the right to ask for identification when an OSHA representative shows up.

"You can ask them to wait," he said. "If it's a routine inspection they will usually give you 30 minutes, maybe sometimes an hour, to get in order. But if it's imminent danger, they're going to start immediately."

Employers can insist on a warrant, but Lottman advised against it.

"I guarantee they'll go get one," he said, "and then they'll be back with all their friends and they'll go through your business with a fine-tooth comb."

Employers have the right to advisors or legal counsel, accompanying OSHA during the inspection, and opening and closing conferences to determine what will be inspected and why, and to discuss the results of the inspection.

"Fully exercise your right to walk around with the inspector," he said. "First that shows him that you care about safety and you don't allow anybody just to walk around on your premises. It also gives you a chance to see what he's looking at, write it down, take notes, ask questions."

Having a safety manual is crucial and Lottman suggested including a cell phone usage policy.

OSHA will look for disciplinary plans geared toward unsafe employees, a complaint system where employees can point out concerns and a safety committee.

"In Nebraska, if you have 10 or more employees, you have to have a safety committee," he said. "You've got to meet at least quarterly and you've got to document it."

Lottman said companies should have a team that knows what to do when OSHA shows up. Conducting a mock OSHA inspection is also a good idea, he said.

OSHA will look for proper signage, Material Safety Data Sheets, maintenance records, lockout/tag out procedures, shields and guards and a written fall protection plan.

"If you're at a job site, you're at a disadvantage, because if they pull up to a job site it's because they caught you doing something wrong," he said.

"If you're a subcontractor ... pack up your stuff and leave. If you're the general contractor, remember that you're in charge of the safety of all your subs, so if the sub gets fined there's a chance that you could also get fined," he said.

Sweep augers are a focal point in the ag sector, he said.

"The way the rule states right now ... you cannot be inside a grain bin with the sweep auger running or any moving grain, or it's going to be a willful violation. If there is an employee in there and there's a fatality, whoever sent him in there is going to go to jail and that's all there is to it," Lottman said.

Source: Chris Zavadil, Fremont Tribune
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