What To Expect When You're Inspected
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Barrett Pryce: (00:04)
All right, let's kick it off. Welcome to today's EHS Daily Advisor webcast, what to expect when you're inspected. First, thanks for being here. My name is Barrett, I'm with Vivid and I'll be serving as your host today. Now, this event is sponsored by Vivid Learning Systems. For those of you not yet familiar with our company, Vivid is an online safety training provider. It's what we do. But our business is really more about making life easier for anyone in a safety role. Now, the plan here folks is to introduce our chief safety officer, Jill James, you guys are going to love her. And I'm just going to get out of her way because she's here to take the fear out of unscheduled OSHA inspections, and she's got unique insight into the process. That's because Jill brings us 12 years of experience as a senior OSHA safety investigator with the state of Minnesota, and nearly a decade more of safety professional ... In the private sector.
Barrett Pryce: (01:02)
She's personally conducted hundreds of inspections and has also been on the other side of the door when OSHA comes knocking. So that's her unique perspective guys. And that other side of the door is where most of you are standing today. Quick note before I hand it over to Jill, remember to ask your questions at any time during this presentation, we want you to participate. Now, Jill should be available for a live Q&A session towards the end of the webcast. That depends on how much we're able to cover. Also, we will have some interactive poll questions throughout this webcast, and we encourage your participation there. So please feel free to engage with those. Jill, I am ready to turn you loose. Is that okay, we good? Did I cover the basics?
Jill James: (01:50)
Yes, you did. Thanks Barrett. And thanks everyone for taking time out of your busy schedules today to be with us. And so I'd like to jump right in with everyone by taking a poll question. So by a show of hands, or in this case with the click of your mouse, how many of you have ever had an OSHA inspection? And then if you did, how many thought the process wasn't too bad, or how many of you thought it was really a terrible experience and you hope to never do that again? Or how many of you thought the investigator was very knowledgeable, or how many thought, not so fair, not so knowledgeable? Take a couple of seconds, choose an answer. Submit it, and we'll see what everybody has to say.
Jill James: (02:51)
All right. I am going to hit the advance and let's see where we are. Wow, okay. So 68% have been through an inspection in the past, and 45% of you thought they were knowledgeable, but we're coming right up on half of you thought maybe not so much. So those are very typical responses to hear. And like Barrett had said in the introduction, I was an investigator with OSHA in Minnesota for nearly 12 years. And in that time, I did over 500 inspections in both general industry and construction settings where I was the lead investigator, and many more where I was supporting a coworker. I'm in my 20th year of my safety career, the last nearly 10 of which has been in the private sector. And my goal for today is to really break down that inspection process for you and offer the view from the perspective of an investigator.
Jill James: (03:57)
And I really tried to create questions for you throughout that I've gotten hundreds of times on the receiving end being an investigator. So those of you who have been inspected before, maybe if you never have, the questions that you might have rattling around in your head have probably been asked before. And so this is all done in an attempt to try to demystify this funny inspection process. So to start an inspection, got something like this. Someone like me or a former me shows up at your door unannounced with a badge and they say something like, "Hi, my name is Jill, I'm here with OSHA. I'm here to do an inspection today, may I speak with whomever is in charge of safety at this facility, or if you don't have someone in charge of safety, then whoever is your top ranking official who's available right now?"
Jill James: (04:53)
And that is how I walked into every workplace or onto every construction site the same way. And you might be thinking on your end, "Oh, crap." And maybe a lot worse. So maybe what if that person she just asked for isn't even there, now what do I do? What's my plan? Do we have a plan for that? And do they really carry a badge? And the answer is yes, they really do carry a badge. It doesn't look like that gold shiny one, but it is something that's a credential that has a photograph of the person on it and an emblem for what they represent, whether it's a federal OSHA entity or a state OSHA entity. But before all that happens and before the investigator shows up at your workplace or onto your job site, they're going to be doing some research before they ever meet you.
Jill James: (05:52)
And so some of the things that I would do as an investigator would be to try figure out who this company is, who is this organization? So I'd look at a history. I'd start with, do they have a history with OSHA? Have they ever been inspected before, and what was the outcome of that inspection? Were there any special notes about who the people were that they met with or maybe if they were met with animosity or not? And did they have a lot of safety programs and training together or did they not have so many things? And then where is this business located? And today maybe we'd be using Google maps to see like how many buildings are at this particular area or if it's construction site, what phase of the construction process are they in? And then how many employees do they have?
Jill James: (06:41)
So kind of trying to set you up as an investigator to predict maybe how long you might be there, how big or small of an establishment this is. So just know that the investigator goes in essentially blind, but tries to gather as much information before they ever meet you as they can as to what you might be about and what size of employer you are. And then they would also be spending time doing any special research depending on the type of business that you're engaged in. And so maybe there's a special OSHA policy or a special rule that I would be reading up on. If I were going to investigate let's say a grain elevator, I would be breaking out that part of the regulatory text and reading about this sexist machine called a man lift, which actually has a lot of things to look at before you try to get to the top of a green elevator.
Jill James: (07:34)
And so that's something I wouldn't deal with every day, so I'd be reading up on that. Or maybe if I was going into a plating operation, I'd be reading up on special chemicals that are used or lead exposure. And so the investigators really trying to do as much homework as they can before they ever cross your threshold. But let's go back to that being on the receiving end of the badge deployment, if you will. And I've seen a lot of reactions in the faces of the people that I've met with in the over 500 times I've done this. And a lot of the feelings that I had of my own going in. And so maybe the person that I'm meeting with would be like, "Oh, gosh, I just hate government. I hate everything about it, and I am so mad that they're here today. How did this happen to me? And I don't want anything to do with government."
Jill James: (08:30)
And so sometimes not often, I was met with anger. Sometimes that anger was very obvious, sometimes it was loud and boisterous. Sometimes it was, I'd like to take you and your government issued car and bury them in my excavation right now. Or sometimes people would, I had this happen once where a company happened to have dobermans on the site, and they were the pets of the owner. And so he liked to use them as an intimidation factor while I was trying to speak with them. So now is that common? No, it's not. Did it happen in the years that I did my inspections Yes, it did. More often than not, I would kind of get a fear response where people might give a little pale or clammy or sweaty. And they're like, "Oh my gosh, what's going to happen? What's happening to me right now?"
Jill James: (09:21)
And so then I would work really hard at trying to diffuse any of that anxiety, if you will. And try to let them know that I wasn't the devil incarnate and I wasn't there to specifically cause problems for them. And then other people were very neutral, maybe they had been through the process before and just were ready to go and had their safety things in order. Just remember when you're on the receiving end of this that we're all humans doing our work, both the investigator and those of you experiencing an inspection. We're all trying to earn a paycheck and we all want to go home the same way that we started and not have a lot of conflict in the process.
Jill James: (10:12)
So another question that you might be asking yourself around this time is, why me? And did somebody turn me in? Or what happened here that I don't know about? Am I going to hear from a third party that something has happened on my watch that nobody told me about? And so how is it that that happened? So just know that the probability of being inspected is actually quite low. Recently a friend of mine and colleague, Dr. Todd Loushine at the University of Wisconsin-Whitewater, he and I used to work with or OSHA together many years ago. He recently did a little research on inspection frequency and found out that about one in 100 workplaces get inspected.
Jill James: (11:01)
So now what are the reasons for an inspection anyway? And is there a science to it or is it really just this random act? Well, it's not random contrary to much popular belief. And it's not because an investigator decided to wake up one morning and say, I'm driving to this location, I'm going to inspect that company because I feel like it or I heard something bad about them. That doesn't happen and it cannot happen. So there really is a science to it, and that science is called probable cause. And so each investigator has to have what's called probable cause before they enter your facility. And there's a hierarchy for that probable cause, and the hierarchy or ranking if you will start with this imminent danger, which is at the top of your slide. So if an investigator observes with their own eyes something that's considered an imminent dangerous situation where a person's life is in jeopardy, maybe it's a fall hazard or maybe it's an electrical hazard that they can physically witness themselves.
Jill James: (12:08)
They're mandated as a government official to stop and conduct an inspection. Or perhaps a complaint comes in identifying something that would be considered an imminent dangerous situation, meaning someone's life or limb is in jeopardy at that moment, then they're mandated to do an inspection. The second ranking is a fatality. And so you might be thinking in your head, "Well, why isn't that first?" Well, that's kind of after the fact. So imminent danger, we could still may be save someone's life versus a fatality when something's already occurred. So the second tier would be fatality, workplace fatality investigations. And followed by catastrophes where people are hospitalized because of something that happened to them at their workplace. And then the next ranking are complaints that come in from current employees, complaints that are filed against a particular employer. And then the next part, the next category are called planned inspections.
Jill James: (13:14)
That encompasses a lot of different reasons for companies to be inspected. So each year, OSHA, whether it's a state entity or a federal entity decides how are we going to pick who we're going to inspect under this planned category in this year. And every year, it's a little bit different depending on what they're looking at. So some years it might be, and these are just examples folks, some years it might be based on your experience modification rating. If you're insured for workers' compensation, OSHA might say, "Hey, you know what, this year we're going to put on a list. Everyone who's got an experience modification factor of 2.0 or 2.3," or whatever the number is they want to come up with and greater. And then your company would be put on the list to be inspected. Or some years it could be based on worker's compensation rates based on the type of industry that you're in.
Jill James: (14:09)
So not specifically about you and your company, but the type of industry that you work in and what kind of experience your industry is having with injuries and illnesses. And that's data that's collected through the Bureau of Labor Statistics and information that's submitted with 300 logs for those of you who are asked to turn your logs in to the government. So those are a couple of ideas. If you are a construction contractor, one of the ways that when I was an investigator that we'd find out about live construction sites that were happening was through what are called Dodge reports, which Dodge is an organization or a company that gathers information on active construction sites and then submits updates as to is this something that's let out for bid? Is it an active site now? At what phase should it be? Who are the contractors on the site?
Jill James: (15:03)
And we used that for scheduling our planned construction inspections. And then there's also, the last part of it is local or national emphasis programs. And so what does that mean? Well, some states have particular industries in them where they might be seeing or experiencing a lot of injuries or illnesses. And so specific industries or work that people are doing might be targeted. And then also as a country. So I can tell you that trenching and excavating has been a national emphasis inspection program for many years because we're still killing quite a few people in trenches and excavations every year. Or maybe a local emphasis program might be having to do with people who have exposure to lead. Maybe it's bridge painters or water tower painters. And so those can be local emphasis or national emphasis programs, if you will.
Jill James: (16:01)
And so this probable cause, so there really is a science to it. And not long ago, Barrett, our moderator today and I collaborated on a white paper that we put together for a company regarding all of the different reasons for inspections. And we used federal OSHA documents to try to gather what all the probable cause reasons are specifically in that planned inspection category. And Barrett got done doing the writing, and he titled it 161 reasons for inspection. And I said, "Did you really count them?" And he said, "Yes, I did. And there's 161." While there's a science to it, there are a lot of different reasons why you may be chosen for inspection depending on whether or not you work in general industry or the construction industry. So let's go back to we've got that investigator at the door and they've presented their badges or their credentials to you.
Jill James: (16:58)
And a question you might be asking yourself is, can I deny them entry? Well, yes, you can. You have a right as an employer to do that. In fact, some companies have a corporate policy that anytime regardless of cause that an investigator comes to their door, they will deny entry. And that's your right to do. And some people do that. Some people might deny entry if they feel like they have too much going on. Maybe they're already being inspected and they have another regulator on site, or maybe all of the people that you'd want to connect with a regulator are at a conference somewhere. Those are some reasons that you can deny entry. Of course, you can come up with your own reason if you'd like. And so what happens if you deny entry to an investigator?
Jill James: (17:47)
Is that going to make them mad at you or is that going to elicit some other response? Well, it really depends. The mad part, no, that should never happen. But the reasoning for it and what the investigator's reaction will be. And so if I were denied entry to a facility, I would be mandated to call my boss right away and say, "Okay, I'm at such and such a location, such and such a community, I've just been denied entry." And then my supervisor would say, "Okay, tell me the reason why." And if I said something like, "They're being investigated by the Environmental Protection Agency right now, they've got somebody else on site." And then my manager's response might be, "Hey, that's okay. Let's just cut them a break. Why don't you go back another time? Schedule it out next week or next month or tomorrow or whatever you'd like and go back at another time."
Jill James: (18:44)
Then I'd leave and do that. Um, let's say it was a fatality case or a complaint or it's the guy with the dobermans or I think they're trying to conceal something. And that would be the feedback that I gave my director. Then my director or my manager could say, "Okay, well hold tight. We're going to get in contact with a local judge, and we're going to get a warrant so that you can enter without delay into that workplace and continue doing your job." And so those are the different outcomes that can happen with that. Now, if you have a corporate policy on denial of entry, and that's part of your record when the investigator is doing their history and research on you and they see that, then they may show up with what's called an anticipatory warrant expecting that that would happen so that they don't have to leave and come back at a different time.
Jill James: (19:37)
That is that process. So let's say you've decided you're not going to deny entry and you say, "Come on in." So some of the questions that you might be asking yourself or asking the investigator is how long is this going to take anyway? And I think I was asked that at probably every investigation. And they're really probably not going to be able to give you an answer. It really depends on how many hazards there are to find or see or how many things there are to discover. If it's a place to rich with hazards and you haven't been doing a lot of hazard abatement and identifying, it might take a long time. If you have several complexes, maybe you're spread out over many buildings over a course of a city, maybe that's going to take a number of days or a week.
Jill James: (20:31)
I can tell you that my longest inspection ever lasted two weeks. It was a very, very large school district. And probably the second longest lasted a week. And others that just stretched out over time had to do more with fatality or serious injury investigations where I needed to go back and continue to collect evidence or interview people. So another question that you might be wondering to yourself is, should I talk a lot to this investigator or should I just answer questions as they come in? Do I just say yes, no and leave it at that? Well, if you have something to say that's relevant to the investigator, maybe they're making an assumption. You want to say no, no, no, no, no, that's not how it works here, it's really this. Go ahead and explain that. Or if you've been working really hard on a particular area with safety and you've been making a lot of advances, please share that stuff.
Jill James: (21:28)
Don't be afraid to talk with them. Go ahead and invite you to be yourself and show your best face of course. But don't think that you shouldn't talk. And then another question, actually, this isn't a question that people have asked, it's what I've experienced personally. But think about this, do you have to follow the investigator's schedule? Kind of yes, kind of no. So here's an example. I've inspected companies before where the person that I was assigned to work with had something else pretty pivotal going on in their life. And I didn't find out about it until the end of the day or days later that someone had a family member who was in a hospital or it was their kid's birthday and they needed to be somewhere celebrating with their child or at a game or they had a dental appointment or they had a really important medical appointment that they ought not be missing.
Jill James: (22:23)
But they didn't say that, and they just gave up on their, abdicated to the investigator and their personal life was set aside. Don't do that. I invite you not to do that. Again, they're human beings just like you are. And if something is going sideways in your life and you need to attend to it for your family or otherwise, please be honest with them and see what kind of work around you can do, whether it's assigning someone else to work with them or maybe you end early for a particular day and then come back the next day and pick it up. I invite you to be honest about that and don't do that to yourself. I did see that happen occasionally and that always made me sad that someone thought that my schedule was more important than theirs.
Jill James: (23:09)
So what happens with an inspection? Well, there's three phases to every inspection, and let's take a closer look at those. And so we have the opening conference, that's the first part. We have what's called the walk around investigation, that's the second or the middle part. And then we close things up with what's called the closing conference. So during that opening conference, the inspector hopefully is using a checklist that the government gave them. That's what I always did to make sure that I was telling you everything, telling the employer everything they needed to know on what their rights were. And they'll explain what their process is for an opening conference and kind of what you can expect in that phase. And then you might be thinking, well, who can be with me? Should I just be representing my company on my own or should I be bringing in more people, or who can that be? The fact is you can have whomever with you that you want.
Jill James: (24:12)
If you want to have your whole safety committee join in on an inspection process, go for it. Everyone's going to learn something that day. If you'd like to have your entire upper management team with you, do that. If you want to have members of your maintenance department or all the leaves from your different departments, do that. If you're on a construction site and you want to have the foreman for each of the general contractors with you, do that. That's perfectly within your rights to do that. Ask the investigator to give you a few minutes to gather people so that everybody can be part of it and listening to the process and walking through it. If your employees are represented by a union, the investigator will ask you that from the outset. Unions have the right to be part of all of the phases of the inspection process. And so they can opt in or opt out if they want to, but the investigator will ask you that question.
Jill James: (25:09)
And then part of the opening conference should be the investigator explaining to you that they're going to interview your employees during the course of the inspection. And you might be saying, "What, really you're going to talk to my people? How are they going to pick them? What are they going to ask them, and do they read them their rights? And can I be present when you're interviewing my employees? What does that look like?" Well, when I would do a routine inspection, so I call routine something that's not a catastrophe, not a fatality, I would generally do my employee interviews while I was getting a tour and walking around the facility looking for hazards or on a construction site looking for hazards where I might just randomly walk up to an employee and say, "Hey, I'm Jill, I'm with OSHA, I'm doing an inspection today. Do you work with any chemicals?"
Jill James: (26:01)
This would be just an example of something I might say. And I would ask the employer to stand back or step aside so the employee can talk with me freely. And the employee said, "Yeah, I work with X, Y, and Z chemical." "Okay. Anybody give me a training on that chemical before or anything you need to know about it, like anything special, like do you have to wear gloves when you handle it or what about a respirator?" And those kinds of questions. That's what an interview process would be like. I wouldn't ask an employee directly, "Hey, have you ever had hazard communication training," because their eyes would gloss over. Nobody remembers what that means. But I would be asking something direct like, do you ever have to put your hands in this machine or do you ever have to change out a belt or a pulley on this, and do you know where to shut the power off?
Jill James: (26:46)
And I'd be asking those kinds of questions. So that's how the interview process went for me. Or sometimes I'd say to the employee, can you teach me more about how this press brake works? And explain that to me. And how do you do this? And what are the safety features on it? So that they could demonstrate and show, so I could hear it directly from the employee. And then with regard to reading them their rights, did that ever happen? Does it ever happen? Yes, it does. Primarily, when I was doing fatality or serious injury investigations where I really needed a statement from an employee. And then as an investigator I would read them what's called their Miranda rights. And sometimes I'm using audio recording or I would take notes.
Jill James: (27:30)
I'd try to take notes if at all possible because an audio recording just kind of wigs people out. And I tried not to do that. But anyway, that's how the interview process generally goes, and that's how I conducted it as an investigator. And so another part of what the investigator will cover with you in the opening conference is the fact that they're going to want to review your written training programs and your training records and your 300 logs. Now, when they do this at what phase of the inspection is really kind of investigator discretion. What I would do is during the opening conference phase, I would ask to see the most current 300 log so that I could kind of get a picture of what had been happening in that workplace. Or I might ask for a year back so I could see what kind of injuries, illnesses if any were happening.
Jill James: (28:26)
So as I get into the facility and I'm looking to identify hazards, I can kind of direct my view, especially to an area if they're seeing a trend in a particular place. I'd want to do that. And then I would ask whoever I was working with to kind of give me a 30,000 foot view of how they address safety in that workplace. Tell me how you do training, tell me how often you do it. Maybe tell me a little bit something about how you address safety with your onboarding. And I'd have them explain it. And then at a later phase of the inspection, I would take a close look at really reading through programs, auditing, training records, maybe asking them to provide training records for everyone that I interviewed while I was doing my inspection, doing the walk around investigation. And so that's how I approached it.
Jill James: (29:16)
Some investigators may want to review all of your records right at the outset, right at the top of the inspection in the opening conference. Some might wait until the closing conference portion to do that. Everyone does it a little bit different, but do know that they will ask you to provide at some point three years worth of 300 logs and the current year. That standard, there's government forms they have to fill out mandating that. And so they'll ask you for those three years of 300 logs and the current year and the average number of employees you had during those years and the total hours worked. All of that data will be asked for at some point during the inspection.
Jill James: (29:59)
So we'll move on to the walk around or the physical audit of the facility. And so some of the things that you might be thinking of is, can I tell the investigator that they have to obey my safety rules and they have to wear certain personal protective equipment? Absolutely, absolutely, you should do that. And they will be expecting it. They'll come in with their own personal protective equipment as well, but really say, "When we're in this area, I need you to be wearing your hearing protection," or, "this is an area where everybody is wearing a hardhat, you must do that as well." And so another question you might be thinking is, well, can they go physically anywhere in my facility? Well, yes, the answer is yes. They have a right to do that. That's what their badge says.
Jill James: (30:45)
However, you want to guide that. You wouldn't want an investigator to go run willy-nilly in your work environment or on your construction site. You want to accompany them. And what my practice was as an investigator because I wanted to keep myself safe and I wanted to be respectful of the place that I was in. I would say, "We need to do a tour essentially of your facility. What do you recommend, should we do it with process flow? Where would you like to start?" And then go from there. If I said, "Could you tell me what's behind that door?" I would ask them instead of opening a door to something or opening an electrical panel or I try to keep my hands off of things essentially not only to protect myself for my own safety, but to be respectful of the environment of where I was.
Jill James: (31:36)
And then can they take pictures? Yes, they can take pictures. If you have proprietary concerns that something that you talk about in the opening conference. So if they say, "I have a camera, may I take pictures today?" You say, "We have some labeling here that we wouldn't want to see here. We have a proprietary process that we wouldn't want pictures taken of." They will be respectful of that or you can say, "Absolutely not, no pictures," and then they'll have to come up with another way to record what they're seeing, whether it's a drawing or what have you. But when I took a photograph, especially when I was working with a company who had proprietary issues, I didn't take any widespread photographs of a workplace, especially with people in them or have an entire work area. It would be of the unguarded thing or of the electrical hazard and really focusing on that.
Jill James: (32:29)
And then you as the employer, I would encourage you to take the same photograph so that you don't have to try to remember what it is that they took a photograph of later. So you can be recording on your end what they saw because you won't be getting those photographs later. So if they take a picture, you take a picture is a good recommendation.
Barrett Pryce: (32:52)
All right. Jill, I thought-
Jill James: (32:55)
Sure. Go ahead.
Barrett Pryce: (32:57)
Jill, I want to jump in here briefly before you share a couple of inspections stories and reminding the audience to send in any questions they've got. Right now, we've got great questions streaming in. Some of those will be covered folks during the live Q&A session. And many of the questions that go unanswered today will be answered post event and as quickly as we can get to them, all right? Jill, sorry to interrupt there, take it away whenever you're ready.
Jill James: (33:23)
Sure, thanks. Thanks, great. So one of the other questions that I'm often asked back then and today is what's the investigator going to look for? And Jill, can you just give me a list of stuff that you'd cite so I can fix it now? Or what are the top 10 things? And honestly, the answer is there are just endless numbers of types of hazards to be identified in different places of employment. And so it's really an impossible answer to say if you these 20 things, these 10 things, these 50 things are going to be golden. That's just really not how it works because every places of employment is so unique and so different. The best advice that I have for you is to focus on what OSHA calls their focus for hazards. And so those are the hazards that injure or kill the most people in a workplace.
Jill James: (34:15)
And so those focus for hazards are kind of what you see illustrated in the photographs you have right now. So falls, electrocution or electric shock, crushed by or caught in hazards. And so I just wanted to give you a couple of examples of some of those. And I think what we'll do here now is I have an example for each, and I have a story to illustrate the focus for all our fatality stories. All are from my experience with OSHA. And I think I'll share one or two with you now. And then if we have time at the end, we can go back and I can revisit those stories for you. So with regard to falls, I've investigated three ladder fatalities. One of them was to do with a fixed ladder. Now, a fixed ladder is something that might be welded or bolted to this side of a piece of equipment.
Jill James: (35:14)
And in this particular case, the ladder wasn't mounted on the side of the equipment properly, meaning there wasn't enough clearance for the person's foot. So there's actual requirements as to where the rung has to be based and how far back it has to be from the fixed structure that it's attached to so that you have enough room for your foot, so that you can climb that ladder comfortably and safely. And so in that particular case, the ladder wasn't made properly. The employee didn't have enough space for his foot. And standing on the second rung, which is 24 inches from the ground, he slipped and fell backwards and hit his head on concrete pavement and died. And so with regard to the hazard there, things that I was looking for, things that you would look for on your hazard identification would be the proper installation of a fixed ladder and knowing what all those parameters are regarding the regulation.
Jill James: (36:17)
A second one with regard to electrocutions also involves and starts with a ladder. In this particular case, a maintenance employee was changing a fluorescent light tube in the hallway of a basic office setting. And he was standing on the ladder, and it turned out that it wasn't a fluorescent tube itself that had gone bad, but rather it was the ballast within the fluorescent fixture that needed to be replaced. Now, that maintenance employee wasn't a qualified electrician, but decided that he was going to change that ballast out anyway without the benefit of knowing that he ought to be turning off the power first. And so when he dug into that ballast, he suffered from an electrical shock and fell from the ladder he was on, struck his head on the carpeted floor and died there.
Jill James: (37:16)
And again, that would be with regard to training and training employees on what their limitations are as non qualified electricians. And then of course a working knowledge of what locking and tagging something out is. The other two stories that we can revisit if we have time, one has to do with them being struck by an object. And it has to do with a story of a concrete mixer and something called a tag axle. And the other story has to do with the very first fatality I ever investigated, which would be a caught in hazard where a person was killed at a saw mill. And so hopefully we have a little time to invite those back if you'd like a little later. And so this walk around piece of the investigation continues where the investigator is looking to identify hazards, physical hazards in a workplace and unsafe work practices.
Jill James: (38:17)
And while they're doing that, you might be thinking, why are they asking me the same questions every time they find something, they're asking me the same questions? And so what would those questions be? Well, the investigator's going to ask how long has this hazard existed, and how many employees are generally exposed to this particular hazard? What percent of their day are they exposed to this hazard? And this is because they're mandated to gather that information, trying to build what's the probability of something happening. And I'll explain what that probability is used for a little bit later. And so during this space, should you be taking notes every time they're taking notes and asking those kinds of questions? Yes, you absolutely should. The investigator can't give you physical copies of their notes, but I encourage you to take notes as they take notes.
Jill James: (39:07)
And when I did this job, I would invite people to look over my shoulder and write what I was writing if they wanted to, my notes weren't secret while I was writing them or they say, "Jill, what did you write about that?" And then I would tell them. And go ahead and ask those questions, you should feel comfortable to do that. And then another thing people ask is, should I fix things along the way? If they're finding things but they could be fixed simply by taking something out of service or throwing it away or dismantling something, should I do that? Absolutely. If you have a way to abate those hazards, go ahead and do that, I invite you to do it. Will they still write you up? Maybe, maybe not. If I felt good about the fact that the hazard was abated and things were going along well in the inspection, sometimes I didn't continue writing a citation, sometimes I did. It really depended on the situation and what the gravity of that particular hazard was.
Jill James: (40:06)
Please know that like every employee in every workplace setting, the quality of the inspector that you get may vary. Sometimes we like our physicians and we think they're great, sometimes we don't. Sometimes we have great customer service from the person that we're ordering our food from, sometimes we don't. Every employee is different, and the same is true with investigators with OSHA. And I had the opportunity to be trained by absolutely stellar people in my tenure. But I've also been on the receiving end in private industry of some pretty embarrassing investigators. So just know that hopefully you get someone who's fabulous and knows their job really well. But it can happen that you might not have a great outcome either, which is the reason I asked that question in the beginning today.
Jill James: (41:04)
So what's the last phase? The last phase is called the closing conference. So what happens then? Well, this is where we're going to start finding out, am I getting cited for anything and what's that going to look like? And am I going to know what those citations are if there are any the day that that investigator leaves my workplace? Well, maybe, maybe not. If I felt things were really pretty a slam dunk and there was a lot of stuff I've cited in the past, I would tell the employer, "I know for certain that I'm going to write citations on these 12 items or 10 items or 6 items or whatever it was. But there's this one thing, this one thing I need to go do some more research on because I'm not sure about it." I know that these for sure I'll be issuing citations for, proposing citation for, but this one I'm not so sure. So I'm going to get back to you on that one. I'm going to call you, I'm going to email. You were going to be in communication and I will let you know one way or another."
Jill James: (42:04)
And then another question you might have is, well, does somebody else review their work or is this one person's opinion everything? And the answer is no. The investigators work is reviewed, my work was reviewed on two different levels. I had someone who just simply reviewed everyone's paperwork. And then another director above that who would review before citations were sent out. So the person's work is reviewed. Maybe they'd say, "Hey, you didn't ask enough questions about how long this hazard has existed or what percent of the day an employee is exposed to that hazard. Really, you can't apply that lot of this situation. You didn't get it right, Jill. You're going to have to not do that one."
Jill James: (42:52)
And so those checks and balances were definitely in place. Another question that people often ask is how much is this going to cost me? And then is there really a way that they calculate the penalty or did they just pull a number out of the air? Well, the answer is they don't pull a number out of the air. There's an actual formula for it. And the investigators use something called a citation rating guide to determine what that base penalty is going to be. And so the reasons that they were asking questions like how many employees are exposed, what percent of their work day, how long has this existed, is that they have to give a numeric rating to the probability of something happening.
Jill James: (43:34)
And for me and the state that I worked in, it was on a 1 to 10 scale. And so after I asked those questions, I had to look at a guide and come up with a number. And then for each regulation that I was citing, so the actual regulation, I had to look it up. So a machine guarding regulation is called 1910.212(a)(1). And then I'd look in this guidebook and it would tell me, give that hazard a letter C grade. Or if it was a fall hazard, if the fall height was this many feet to this many feet, you give it a letter B grade, a C grade, a D grade up to an F grade, which would be the most serious thing that could happen to an employee. And so I'd have this matrix, so I'd have a letter and a number. And I'd line up a letter and a number in a box and it would tell me what my base penalty was.
Jill James: (44:22)
And I did that for each thing that I cited. And so that's how they come up with what the dollar amount is going to be for citations. And so they don't do it for everything you're being cited for in a group, but each one has done on an individual basis using this guide called the citation rating guide. So it's not something that people invent or come from left field with. The investigator leaves, they do their paperwork. It gets reviewed by the people who are reviewing their work. And then you as the employer get the what's called citation package in the mail. And it's going to give you a list of things that you need to do with it. One of those things is to post a copy of the citations for your employees to see so they have knowledge that your company was inspected, and they can see what the outcome was. And then you need to provide proof of abatement, meaning you fixed hazards that were identified back to OSHA. And there's timeframes associated with when you need to get that back.
Jill James: (45:27)
And then there will also be information in your citation package that will tell you, you have the right to contest the citations. And so often I would talk with employers about contesting, and I'd be explaining this in my closing conference to them. And I say, "You have the right to contest the citations." And they'd say, "But Jill, we don't really disagree with the stuff you found today, so why would we contest?" And so I would give examples sometimes. And this is one of the examples I would give. I would say, "Some of these things that you're doing are going to cost money, and I know that you've told me from everything we've talked about in the last day or the last two days, last number of hours that you really have your site set on making some other safety improvements. And we talked about that, I see that you have some goals that you've established. And some of that costs money, right?" And they go, "Yeah, right."
Jill James: (46:16)
And I say, "Well, would you rather give that money to the government or would you rather sync it back into your own safety program and make improvements?" And they go, "Well, yeah, I'd rather sync it back into our safety program." And I say, "Well, why don't you go ahead and contest the citations? If you're not in disagreement with what I cited, that's fine. You don't have to disagree with that. But you can come to meet with someone in OSHA higher than me and say, "Hey, you know what, we have these goals with safety, and we want to be able to spend money on X, X, and this. And here's some proposals we've gotten, this is what it's going to cost. Do you think you could maybe give us back some of that money? And this is how much we'd like a forgiveness for so that we can put it in and invest it into our safety program rather than give it to the government?""
Jill James: (47:01)
And so those are some negotiating tools and tips that I gave to employers that people often would use. And it's within your right to do that. Of course, if you disagree with what your investigator found, you absolutely should contest for that reason, absolutely do that. And so does that happen? Yes, it does. Is it within your right to do that? Absolutely, and you shouldn't even think twice about doing that. Sometimes people say, "Well, should I hire an attorney? If I decide to contest the citations, do I have to hire an attorney?" Well, the answer is you do not have to. Many employers represent themselves, and that's perfectly fine to do. And then OSHA will be represented by someone who's not an investigator, but someone higher up in the chain. And you have a conversation, and you come to an agreement.
Jill James: (47:51)
If you hire an attorney, which is also within your right, and some specific organizations, maybe you're part of an association has legal representation that will help you with OSHA citations. And that's perfectly fine as well. So know that if you hire an attorney who maybe has a specialty practice in this type of law, then OSHA will be represented by an attorney as well. And so that's when that works. So if you come without an attorney, OSHA won't bring in an attorney because that wouldn't be equal or fair. So just know that that's within your right to do. And so another question employers would ask me is, are the results of my inspection, do they become public record? Can other people find out about them? Yes, that does happen. And in fact, it happens every time after the case is closed and final.
Jill James: (48:40)
And so a closing final would be after, if you contested citations and you came to an agreement, after all of that is done then your record is on the OSHA website. So osha.gov, it's under an establishment search, I believe is the part of their website. And you could look up your company right now. You could look up your neighbor, your competitor, the place that you worked at your first job when you were 19 years old. You can see if they've had an inspection. And you can see the date of it, how many they'd had. And then what exactly the company was cited for by regulation. None of the details or the written work of the investigator are published in that. But you can see dollar amounts and citation numbers that were cited and the reason for the inspection, whether it was a fatality or a complaint or a planned inspection, that'll all be there.
Jill James: (49:37)
And so some steps that you can take today, and hopefully you've had a just a few moments to kind of process and work through this with me while I've been talking today. Some of the things that you could take today, action on to help prepare you for an inspection or an audit is to work on a preplan response. So remember when we started out and I said sometimes the person that you would expect that you'd want to work with, have an investigator work with on inspection is gone. So who's the next person that may be your receptionist or whomever is going to get that badge first? Who's the next person they would call, and the next person they would call? When I started working in private sector, I did that with each place that I worked to say, if I'm gone, here's the next person, and here's kind of the fault tree, if you will where we're going to call this person. If that person is gone, call this person. Here's where the records reside, here's where the programs reside.
Jill James: (50:39)
If I'm not available, then this is where you need to go. Here are the documents that you need to look for or here's how to contact me. So have kind of a preplan as to what you're going to do. And that's really important for construction contractors as well. Because oftentimes this is going to be happening with one of your foremen who might be like, "Am I supposed to call our corporate safety person? Am I supposed to call my boss? Whom am I supposed to be calling? Do I have a right to call them? How can they become part of the inspection process?" So really do a preplan on what you want your corporate response to be with regard to an inspection.
Jill James: (51:15)
And then spend some time getting your regulatory poop in a group. So what does that mean? Well, we need to make sure that you've got all of your written safety programs in place that you need. And I can give you some resources on how to figure that out if you don't know right now in a little bit. And then determine what subjects you should be training your employees on. And if you haven't done an audit on that in a while, maybe it's time to audit yourselves as a company to find out whether or not you're missing something, maybe there's a gap in training that you forgot you need to be doing training on or maybe you've never done it at all. So we want to be doing employee safety training and keeping records of it because we need to produce documentation. What I like to call the four D's, which are, if you didn't document it, you didn't do it, is the assumption.
Jill James: (52:05)
And so we want to be able to show those written safety programs. We want to show that our employees have been trained, and we need to show record of it. And then to start working if you haven't already really on identifying hazards in your workplace. And so what does that mean, and how do you do it? You can do it with your own work teams, your own work groups, but remember that you can invite your insurance companies to come in with fresh eyes different than yours that maybe are going to look at different things to do a safety audit with you. Maybe it's your workers' compensation insurance holder who will have loss control people who can do that with you, or maybe it's your property loss and casualty people who can come in and do that with you.
Jill James: (52:46)
You can hire private safety consultants, or maybe if you have multiple entities, you can have work groups inspect one another's work groups so that you're bringing in fresh eyes to identify and correct hazards. And then of course, we want to enforce safe work practices. We want to identify the human beings who might be lacking information or doing something wrong and correcting what they're doing so that they don't get hurt. So now being prepared for OSHA is, but doing this kind of preparatory work isn't just for the if you're one of those 1 in 100 people that might get an inspection. The bottom line is ultimately we want to send our employees home safe and healthy the way they came at the beginning of their work day.
Jill James: (53:45)
And another auditor that would be asking you almost the same sort of things that an OSHA investigator will are your insurance companies. Remember insurance companies want to know what kind of a risk you are to insure. And so they're going to be doing a lot of this same processing that an investigator would asking you for programs and training records and doing physical audits to determine what you are in terms of a risk to insure and how they may assign fees with that. And so those are other reasons why you'd want your regulatory proverbial poop in a group, so to speak.
Jill James: (54:25)
And then last and before we take a couple of questions, I wanted to do another poll. Let's skip to that poll. I'm wondering how prepared you're feeling after you've listened for a little bit today. And I really thank you for your attention. How prepared do you feel you are for an inspection by regulators? And then go ahead and hit the submit button, and let's take a look at those answers. Great. So 63% feel that you're prepared, and 33% of you feel that you're not really prepared. I've got a couple of resources that I'd like to direct you to that might help you feel a little bit more prepared. The website for my company Vivid Learning Systems is firstname.lastname@example.org. And in the blog area, which I believe is in the upper right hand corner, there's a series that I've written called, so you've got the safety job, now what?
Jill James: (55:34)
And if you're new to safety and maybe you don't know where to start and you're wondering, gosh, what about those written programs I didn't even know that existed or what could they be? That blog series covers that. It also covers what should I be training my employees on? And a number of other items about being new to the safety field. Within that blog series is also a safety program template for your first written safety program. And so that's there, and you can download that. It's free for your use. And then if you're really wondering, gosh, what training do I need? I haven't done an audit of myself in a while. Maybe we have some gaps, I don't even know where to start. Right on the homepage of email@example.com, right in the center page, it says, what training do you need? And it'll take you through a series of questions in a quiz type format. And you'll be able to print out a report right from there at the end that will tell you what you need to be doing training on based on your unique needs.
Jill James: (56:37)
And [crosstalk 00:56:38] if you want, go ahead.
Barrett Pryce: (56:42)
Yeah, it's time for a lightning Q&A. We're running real close to the hour. Thank you so much, that's a mountain of great information there. And I want to go ahead and put up our first and most popular question and see if we can tackle a couple of those. So lightning Q&A, ready?
Jill James: (57:01)
Barrett Pryce: (57:02)
Okay. First question is, what is a reasonable amount of time to produce documents? When we told our inspector we would have to go get them and offered coffee or water while waiting, he said we were trying to stall him. What's the expectation there?
Jill James: (57:18)
There is a document that investigators follow that say, if you've been stalled for more than, and there's a minute associated with it, and I can't remember what it was in my state. And I'm sure each state is different, it might've been 20 they're going to say you're just trying to hide stuff. You're out in your plant trying to cover things up. And then they can pursue a warrant if they want, if they feel the investigation is being delayed. I think the get them coffee or water while waiting, I think that's reasonable. Gosh, hopefully you weren't dealing with someone who was unreasonable. But being able to find records and produce them a number of minutes is just fine as long as you can say, "Hey, you know what, we archive them this way. They're stored back at our corporate office. This is the way we can have them emailed to you within the next half hour, maybe let's start the walk around investigation right now." You can invite that in. If they're questioning that it's because they think you're trying to deny them entry. Go ahead Barrett, lightening speed.
Barrett Pryce: (58:28)
Okay, Jill. Next question here. This question is how much influence do I have as the company safety officer over sub-contractors who do work in our facility? Popular question, go for it.
Jill James: (58:44)
Right. This goes back to what OSHA calls the multi-employer work site policy. And if you are the company that's inviting subcontractors in, you're considered the host or controlling employer, meaning that you have a lot of stake in the safety game for those subcontractors. So often people will say, "Well, they're subs, it really doesn't matter." They're in charge of their own safety, what am I to do about it?" Well, it's your work environment, it's your workplace and you do have a hand in that. If you haven't already gone to the OSHA website, do that and type in multi-employer work site policy and read what your responsibilities are as the controlling or host employer. It's vast and many, and it's something that you should really exert yourself on.
Barrett Pryce: (59:32)
Great, Jill. Time for one final question here. The question is, can employees refused to be interviewed?
Jill James: (59:42)
Yes, they absolutely can. That's within their right. I don't believe I've ever been refused that, bu yes they can.
Barrett Pryce: (59:54)
All right, let's squeeze one more in. You with me? The question is, we are required to have all visitors sign in at the front office. The OSHA inspector we had refused to sign the log, fair deal or not? What's going on there?
Jill James: (01:00:14)
I can't imagine why they would refuse that, that's ridiculous. It's usually for a life safety reason. You want to have a body count. If something happens and you have a fire, you want to account for all the human beings that were in there. I'm sorry to hear that you had that reaction. I've never refused to do that, I can't imagine why you would. It's usually linked back to life safety. Sounds silly.
Barrett Pryce: (01:00:38)
All right guys, our time is up here folks. We had a lot of great questions come in today. Unfortunately, we weren't able to tackle them all. In the coming days, we will try to respond to as many of these as we can, as quickly as we can and get you a solid researched answer to all of the questions we did not have time for today. I want to thank you for sticking with us throughout the webcast. I hope you learned as much as I did here today. A quick round of applause for Jill James and our friends with EHS Daily Advisor. Just on final note, you will receive a recording of this webcast sometime post event. So check your inboxes perhaps over the next 48 hours. All right, that's it. Enjoy your afternoon and stay safe out there. Thanks again.