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Why is OSHA Knocking at my Door
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By Adele L. Abrams, Esq., CMSP

Recently I was asked why it seemed that OSHA was inspecting a certain pallet manufacturing company on nearly an annual basis, given that OSHA has no mandatory inspection schedule. I responded that there are a multitude of reasons why OSHA can darken your door. The visit may be triggered by events, what is known as an “unprogrammed” inspection. These include:

(1) a fatality or catastrophic event (you’ve had an accident that resulted in the death of a worker, or hospitalization of three or more persons, and had to call OSHA to report the event);

(2) a hazard complaint by a current employee to OSHA;

(3) a complaint made to OSHA by a current or former employee, alleging that they were retaliated against because they raised a safety concern or engaged in other protected safety activity (this is an investigation under Section 11(c) of the OSH Act, the “whistleblower protection” provision, and normally does not involve a safety/health inspection of the worksite);

(4) a “professional referral” by a state consultation program representative, reporting that you did not correct a condition that they found during one of their “voluntary” inspections, or someone from another agency (EPA, USDA) observed a safety or health violation and called OSHA; or,

(5) an “imminent danger” is spotted by an agency representative through your gate (e.g., someone can be seen standing on a high stack of pallets without fall protection).

There are also a few types of “programmed” inspections that can trigger an OSHA visit. The first is when an employer falls within the site-specific targeting program, which involves being in a high hazard industry (the pallet industry qualifies) and then having a higher than average incidence rate of injuries/illnesses within that NAICS code.

Another is when the employer has been placed in the Severe Violator Enforcement Program (SVEP), which then requires that the company’s other worksites be inspected to see if the same hazards are present as at the initially inspected location. This, of course, often can lead to repeat and willful violations, which can reach $70,000 per citation item and are publicized by OSHA with press releases placed on the national website and sent to local papers for “public shaming” of the employer.

The most common programmed inspection, however, occurs when the employer is in an industry covered by one of OSHA’s National Emphasis Programs (NEPs). There are two primary NEPs that apply to the pallet industry: combustible dust and amputation prevention.

Because OSHA’s combustible dust rulemaking has been moved to the “long-term action category,” there seem to be fewer NEP inspections in the pallet industry these days, but it remains a possibility because of the potential for catastrophe due to uncontrolled fine wood dust in a confined environment with heat sources (machinery). Proper ventilation, good housekeeping, fire control practices and adherence to the NFPA 652 standard will largely protect a pallet company against combustible dust related citations under both specific standards and the General Duty Clause (Sec. 5(a)(1) of the OSH Act). About 25 percent of citations issued during Combustible Dust NEP inspections were written under the General Duty Clause, which requires each employer to maintain a workplace free from recognized hazards that cause or are likely to cause death or serious bodily harm. Of course, if OSHA is in the workplace looking for combustible dust hazards, anything else that the inspector sees and recognizes as a safety or health hazard (e.g., high noise levels, unsafe use of forklifts or improperly stacked pallets) is fair game to be cited.

The other NEP that quite frequently triggers pallet industry inspections is the amputation prevention program. This emphasis program is one of OSHA’s longest running initiatives. Originally started in 1997 for the mechanical power press industry, it was expanded in 2002 to address additional machinery associated with amputation hazards, thereby reducing injuries. To qualify, the selected industries had to have high guarding (or similar) OSHA citation rates coupled with high amputation numbers as compiled by the Bureau of Labor Statistics.

The initiative covers both machinery and machine guarding and also hand and portable powered tools and other hand-held equipment. Inspections under this NEP will also include a review of the employer’s lockout/tagout program documents and procedures under 29 CFR 1910.147 (control of hazardous energy standard). The other emphasis standards are those involving guarding for different types of equipment: 1910.212, 1910.213, 1910.217 and 1910.219.

OSHA notes that the failure to properly apply machine guarding techniques and the failure to adequately control associated energy hazards during servicing and maintenance activities are the primary causes of amputations. These accidents often result in either fatalities or permanently disabling injuries. The NEP involves outreach to employers, targeting/selection, inspection and program approval.

Outreach programs can include meetings with employers, professional associations and unions, and the agency can offer training, education, mailings, speeches and other activities to help identify and eliminate hazards associated with machinery. A number of years ago after this NEP started, NWPCA met with top OSHA officials to address some of the unique guarding and work practice concerns in the pallet industry. As a result many citations were subsequently able to be vacated or abatement methods worked out to the agreement of both the employer and agency. Outreach is available to all covered employers, but those with 10 or fewer employees will receive outreach but be exempted from NEP inspections. Other employers should be aware that admission of violations (or performing demonstrations on how equipment is used in a violative way) can become the basis for citations, and if an OSHA representative providing outreach guidance indicates that corrections must be made, failure to do so can lead to enforcement action.

When conducting an NEP amputation prevention inspection, OSHA will identify if any machinery and equipment in “Appendix D” of the NEP document is present and will use judgment as to determining whether employee exposures to nip points, pinch points, shear points, cutting actions, and other points of operation are present. The inspector will evaluate exposures during regular operation of the machine, setup and preparation, clearing jams or upset conditions, making running adjustments while the machine is operating, cleaning, oiling/greasing, scheduled and unscheduled maintenance, and lockout/tagout procedures. The OSHA 300/301 logs will also be reviewed to determine if there were recorded amputations in the past associated with machinery and equipment, and the inspector may ask to interview those employees privately.

Employers should be aware that if they receive willful or repeat violations from OSHA, issued under one of the NEPs, or such citations involve an injury or are rated as high gravity, this can place the company in the SVEP program.

In addition to NEP-triggered amputation inspections, this category will likely increase starting in 2015, due to the new OSHA reporting requirements. In addition to having to report fatalities and hospitalizations of 3+ persons to OSHA within 8 hours, effective January 1, 2015, all employers must now also report to OSHA within 24 hours all in-patient hospitalizations (not ER treatment), or any amputation (total or partial), or loss of an eye occurring within 24 hours of the workplace accident. OSHA anticipates that its accident-related inspections will increase by 25,000 per year as a result of these changes. This is unfortunately going to mean more knocks at the door within this industry sector unless greater efforts are made to avoid such injuries through elimination of combustible dust hazards, proactive guarding and adoption of appropriate safe work practices.

(Article published in PalletCentral Magazine, January-February 2015)

Adele L. Abrams is an attorney and safety professional who represents companies in litigation with OSHA and provides safety training and consultation. The Law Ofice of Adele L. Abrams PC has three offices: Beltsville, MD; Denver, CO; and Charleston, WV.