Even the most experienced employers are sure to have questions from time to time about the nation’s workplace safety agency – the Occupational Safety and Health Administration (OSHA). That’s where we come in. The Fisher Phillips Workplace Safety Practice Group has prepared this comprehensive series of FAQs to answer all of your questions. The document you have at your disposal covers all of the topics you’ll need to know about: recordkeeping, employee complaints, agency inspections, agency citations, the process of challenging inspections, complaints and answers, discovery process, OSHRC hearings, post-hearing appeals, miscellaneous issues, and state OSHA plans.
Below are a sample of questions and answers.
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Q: Who is required to keep the OSHA Forms 300, 300A, or 301?
A: All non-exempt employers or those employers that have been notified by the Bureau of Labor Statistics (BLS) that it will collect injury and illness records from that establishment in the coming year.
Q: Are small employers exempt from keeping OSHA Forms 300, 300A, or 301?
A: Employers with 10 or fewer employees throughout the previous calendar year do not need to complete OSHA Forms 300, 300A, or 301. This partial exemption for size is based on the number of employees in the entire company at the company’s peak employment during the last calendar year. If an employer had no more than 10 employees at any time in the last calendar year, that company qualifies for the partial exemption for size and does not need to fill out or keep these forms.
Q: What kind of complaints do employees make to OSHA?
A: The most common type of complaint that employees can submit to OSHA is a complaint regarding an ongoing safety or health hazard. Employees can also make complaints that they have been retaliated against by their employer.
Q: What happens when OSHA receives a safety and health complaint?
A: An OSHA investigator will often call an employer to obtain additional information about the establishment and to attempt to interview a manager or safety professional to get information on if the alleged hazard exists.
Q: Where can OSHA inspect?
A: OSHA is authorized to inspect any workplace where work is performed by an employee of an employer.
Q: When can OSHA conduct an inspection?
A: OSHA may conduct an inspection during regular working hours and at other reasonable times.
Q: How long after an alleged violation does OSHA have to issue a citation?
A: Six months.
Q: After the closing conference, when will OSHA contact an employer again?
A: Because OSHA has six months to issue a citation, it can be weeks or months after a closing conference before an employer hears from OSHA.
The Process of Challenging Citations
Q: What is an Informal Conference?
A: When OSHA issues a citation, the employer has 15 working days to file a Notice to Contest. During this 15-day period, employers may request an Informal Conference with OSHA. The main purpose of the Informal Conference is to resolve the citation without litigation through a settlement.
Complaints and Answers
Q: What happens after the employer has timely filed a notice of contest?
A: Within 21 days of receipt of the employer’s notice of contest, the Secretary of Labor must file a written complaint with the Commission. The complaint sets forth the alleged violation(s), the abatement period and the proposed penalty amount, if any. Once the area office receives the notice of contest, the notice is forwarded to the Office of the Solicitor within the Department of Labor, the attorneys for OSHA. Then, the citation will be docketed with the OSHRC, where the Solicitor (attorney for the government) will file a Complaint. The employer must then file an answer within 21 days that invokes any available affirmative defenses and generally explains why the citation is inappropriate.
The Discovery Process
Q: What are the common types of discovery in OSHRC proceedings?
A: Generally, there are four types of discovery mechanisms common in OSHRC proceedings: interrogatories, requests for production of documents and things, requests for admissions, and depositions. Involving counsel in the discovery process is advisable.
Q: What is an OSHRC hearing on the merits?
A: Hearings are governed by OSHRC rules 60-74. The parties will be notified of the time and place of the hearing at least 30 days in advance. The employer must post the hearing notice if there are any employees who do not have a representative and serve the hearing notice on all unions representing affected employees. The hearing is usually conducted as near the workplace as possible.
Q: Can a party appeal the ALJ’s decision?
A: Yes. After an ALJ issues a decision, the parties can object to the decision by filing a Petition for Discretionary Review with the Commission’s Office of the Executive Secretary. Instructions for submitting such a petition will be stated in the ALJ’s letter transmitting the decision and in a Notice of Docketing of ALJ’s Decision issued by the Executive Secretary’s Office (See OSHRC Rule 91). Because review is discretionary, OSHRC determines which cases it reviews and does not review every case requested to be reviewed.
Q: How are documents filed before the OSHRC and ALJs?
A: All parties and intervenors must file documents electronically in the Commission’s E-File System by following the instructions on the OSHRC’s website. If an employer is represented by an attorney or a non-attorney representative, that representative is responsible for making electronic filings on the employer’s behalf.
State OSHA Plans
Q: What are OSHA “State Plan” States?
A: State Plans are OSHA-approved programs that are operated by individual states. There are currently 22 State Plans covering both private sector and state/local government workers. There are also seven State Plans covering only state/local government works. State Plans are required to meet minimum federal requirements and must be “at least as effective” as the Federal OSHA program.