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Keven Moore: Think your business is to small for OSHA? Not exactly! Any company can be inspected


As a risk management and safety consultant I have learned that there is a common myth out there that OSHA can’t inspect companies with less than 10 employees — but this isn’t true.

Yes OSHA is a small agency and I have heard that the odds of being randomly inspected by OSHA are once every 77 years, but that comes with some footnotes:

1- None of your employees calls in a safety complaint on you.

2- You don’t have a fatality or serious accident.

3- Your business doesn’t fall into a targeted industry by OSHA.

Yes, big brother cannot look over everyone’s shoulder and currently OSHA (including state-plans) has approximately 2,100  inspectors for 8 million worksites and 130 million workers in all industries nationwide. That is equivalent to one OSHA inspector for every 3,800 worksites or 61,900 workers.

In fact, in 2018, OSHA conducted 73,013 inspections which is .009% chance of having them knock on your door last year. So OSHA only has the resources to inspect a tiny fraction of the estimated eight million workplaces in its jurisdiction. So the questions are how does OSHA decide who gets visited? And as a small business owner are you at risk for an inspection?

This myth out there is that OSHA can’t inspect companies smaller than 10 employees is further from the truth. That suspect that misnomer is generated from the fact that if you have less than 10 employees then you don’t need to keep records of your OSHA recordable accidents on the OSHA 300 form.

However, OSHA covers most private sector employers and workers either through Federal OSHA or through an OSHA-approved state plan, and in most cases size is not an issue. If you employee one employee then you fall under their safety guidelines.

Here are some of the reasons that OSHA might inspect your small business:

Imminent Danger

OSHA’s top inspection priority is any situation that involves imminent danger. If there’s reasonable certainty that a danger exists that could cause death or serious harm before normal enforcement procedures can occur, OSHA can inspect your company, regardless of its size. Examples of such dangers include exposure to unguarded exposures, fall hazard, electrical hazards or toxic substances.  

There must be a threat of death or serious physical harm. For a health hazard, there must be a reasonable expectation that toxic substances or other health hazards are present and exposure to them will shorten life or cause a substantial reduction in physical or mental efficiency. The harm caused by the health hazard does not have to happen immediately.

The threat must be immediate or imminent. This means that you must believe that death or serious physical harm could occur within a short time, for example before OSHA could investigate the problem.

If an OSHA inspector believes that an imminent danger exists, the inspector must inform affected employees and the employer that he is recommending that OSHA take steps to stop the imminent danger.

Illustrations from OSHA.com

OSHA has the right to ask a federal court to order the employer to eliminate the imminent danger. They may learn of imminent danger by employee complaints or through referrals by other government agencies, as well as during other inspection processes.

If OSHA learns of imminent danger, it will make every effort to inspect immediately, typically the same day, or within one day of knowledge of the condition.

Severe Injuries and Illnesses

OSHA requires employers to report workplace fatalities, as well as amputations, inpatient hospitalization or loss of eye, in a specific time frame. Fatalities must be reported within eight hours, while the other covered serious injures must be reported within 24 hours. OSHA investigates all fatalities with an inspection.

Because of OSHA’s limited staffing issues for reportable serious injuries, OSHA will triage the report once you have reported it. Depending on the severity, age of the injured worker, the number of injured workers or circumstances leading to the injury, OSHA may initiate an inspection or they may not.

OSHA also considers the history of the employer when deciding whether to inspect. Employers who are repeat offenders, have shown previous failure-to-abate condition, or have a hazard covered by a local, regional or national emphasis program are more likely to be inspected. 

Employee Complaints

In America, employees have the right to report complaints of unsafe conditions to OSHA without fear of reprisal. OSHA follows a certain protocol for these reports and upholds strict confidentiality of the employee.

OSHA will then evaluate the complaints to decide if they have merit. The agency will respond to the employee complaint based on the nature and severity of the reported hazard, as well as the employer’s history. This may warrant an inspection, or it may warrant a letter to the employer asking for them to respond, all depending on the severity of the situation.

Referrals

OSHA may also decide to inspect a small business because of reports from other people, organizations, government agencies (including health departments), or the media. There have been times where an OSHA inspector has opened up the newspaper or turned on the TV and has seen somebody working in an unsafe manner and shows up to that worksite the very next day.


Being At The Wrong Place At The Wrong Time

OSHA inspectors are very mobile and are out traveling our roads and streets every single day and they visit the same places we do from schools, hotels, retail establishments, restaurants…etc. If they happen to see one of your employees operating a piece of equipment in an unsafe manner, or if they are driving and look over and see one of your employees up on a roof or leading edge of a roof without the proper fall protection, your employee will receive that OSHA inspectors undivided attention. They may also be on a worksite to inspect another employee, but run across one of your employees working in an unsafe manner and it is their duty to act.

The importance of a strong safety culture cannot be underestimated regardless of the size of your company. If you have 5 employees or 500, as a business owner you can and will be held accountable by OSHA to ensure that your employees remains safe and healthy. Their mission to ensure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.

Employers can prevent many types of OSHA inspections, as well as costly consequences such as fines and even jail time; through a simple safety management system that encourages reporting of unsafe conditions and effectively correcting hazards.

It’s as simple as identifying all the hazards and implementing the appropriate controls to eliminate or minimize employee injuries and illnesses, which can also reduce the potential for certain inspections.

If you do not think that you have the expertise to accomplish that task, you can even call OSHA and they will come out and assist you with this effort and you will not be penalized for what they find. All you have to do is the right thing, and abate the hazard once they identified and made the proper suggestions to keep your employees safe.

Be Safe My Friends

Keven Moore works in risk management services. He has a bachelor’s degree from the University of Kentucky, a master’s from Eastern Kentucky University and 25-plus years of experience in the safety and insurance profession. He is also an expert witness. He lives in Lexington with his family and works out of both Lexington and Northern Kentucky. Keven can be reached at kmoore@roeding.com.


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