At various safety and health conferences across the country over the past year, US Secretary of Labor Hilda Solis stated that there is a new sheriff in town and promised that the Occupational Safety and Health Administration (OSHA) is back in the business of enforcing workplace safety and health laws.  OSHA has been fulfilling the promise by issuing numerous citations with extremely high penalty amounts to the regulated community. 

In the last few weeks alone, OSHA issued the largest fine in its history of enforcement.  In this regard, OSHA issued 270 failure-to-abate and 439 willful citation items with a penalty of $87 million to BP Products North America, an oil refinery located in Texas City, Texas.  OSHA also issued the second-largest fine in its history of enforcement in the state of Colorado – 22 willful and 13 serious citation items with a penalty of $1.6 million to Temple Grain Elevators LLP, a grain elevator company located in Wiley, Colo.

In addition to these two record-breaking penalty amounts, OSHA issued seven willful and three serious citation items with a penalty of $511,000 to Loren Cook Co., an industrial-ventilation manufacturer located in Springfield, Mo.  OSHA also issued six willful, seven repeat, and 20 serious citation items with a penalty of $509,000 to Cranesville Aggregate Co., a cement company located in Scotia, New York.  And OSHA issued 11 willful citations with a penalty of $484,000 to Cambria Contracting Inc., a demolition contractor located in Lockport, NY.

These recent enforcement statistics show that the OSHA is indeed back in the business of enforcing workplace safety and health laws.  In order to avoid being an OSHA enforcement statistic, companies should, among other things, conduct internal safety and health audits under attorney-client privilege.  An internal safety and health audit provides companies with the opportunity to correct safety or health violations before OSHA arrives to conduct an inspection and issue citation items with penalties.  Companies should also learn how to manage OSHA during an inspection.  Based on prior experience, companies who are not prepared for the arrival of OSHA typically receive more citation items with higher penalty amounts. 

Advance preparations for OSHA inspections require company management to consider the issues that typically arise, and decide to the extent possible how they will be addressed.  While every inspection is different, and relationships with local OSHA Area Offices may influence the approach to an inspection, there are certain issues which may be anticipated.  Experience in advising and representing clients in federal and state OSHA inspections enables several guidelines for preparation to be identified that are effective in a wide variety of inspections.  Thus it is important to establish appropriate goals in dealing with an OSHA inspection.  Some universal objectives are to present the workplace in the best possible light.  Minimize liability.  Determine whether OSHA has any compliance concerns as early as possible so explanations and defenses can be presented before inspectors reach erroneous conclusions and issue citations.   The company should control the flow of information to OSHA, rather than permit unauthorized or inadvertent disclosures.  The inspection process should be managed to minimize operational disruptions.  Some specific items that can be decided in advance include who will determine if OSHA is allowed to inspect, or if a warrant should be demanded?  Who will be the principal liaison with OSHA, accompany OSHA during the inspection, gather documents, arrange for interviews, and determine whether counsel is needed in connection with the inspection?

With OSHA executing an aggressive enforcement strategy, well-managed companies will not delay verifying their compliance with government safety regulations and preparing for the day when an inspector arrives.