Enforcement activity reflects the authority vested in OSHA by Congress to enforce Federal workplace standards issued under the Occupational Safety and Health Act of 1970 (OSH Act). To ensure compliance with OSHA standards, reduce workplace hazards, and prevent fatalities, the agency conducts inspections of worksites and facilities, assesses penalties, and requires abatement of hazards when violations are identified. OSHA utilizes a mix of unprogrammed inspections (e.g., investigating complaints, including claims of imminent danger, and serious accidents involving fatalities, amputations, and in-patient hospitalizations) and programmed inspections (proactive approaches to specific workplace hazards or high-hazard workplaces identified by analyzing injury/illness data and emerging threats).

OSHA’s enforcement strategies include targeting inspections at workplaces with particular hazards or at specific hazardous industries.

Just under half of all inspections are programmed. The agency conducts programmed inspections using national and local emphasis programs that direct resources to high-hazard industries or specific hazards that lead to severe injuries, illnesses, or death.

OSHA currently has 11 National Emphasis Programs (NEPs) focusing on COVID-19, lead, ship-breaking, trenching/excavations, process safety management, hazardous machinery, outdoor and indoor heat, hexavalent chromium, primary metal industries, silica, and combustible dust. OSHA’s Regions and Area Offices also have additional Local Emphasis Programs (LEPs) that focus on hazards and industries prevalent in their jurisdiction.

Site-Specific Targeting (SST) Program

The agency’s Site-Specific Targeting (SST) Program also consists of programmed inspections of non-construction worksites in both the manufacturing and non-manufacturing sectors. Each year, OSHA selects establishments for a full safety and health inspection based on high or upward-trending injury rates as submitted through the electronic Injury Tracking Application. Selection is based on their DART rate (cases with Days Away, Restrictions, or Transfer).

Under SST, OSHA also inspects a random sample of establishments the agency believes should have provided Form 300A data under 29 CFR 1904.41 but did not. Similarly, the agency targets a sample of low-rate establishments to verify the reliability of the 300A data

Voluntary Protection Program (VPP)

It’s worth noting that VPP participants are exempt from OSHA programmed inspections while they maintain their VPP status. The VPP recognizes employers and workers in the private industry and federal agencies who have implemented effective safety and health management systems and maintain injury and illness rates below national Bureau of Labor Statistics averages for their respective industries.

To participate, employers must submit an application to OSHA and undergo a rigorous onsite evaluation by a team of safety and health professionals. Union support is required for applicants represented by a bargaining unit. VPP participants are re-evaluated every three to five years to remain in the program.

Inspections scheduled in response to alleged hazardous working conditions identified at a specific worksite are classified as unprogrammed. This type of inspection responds to:

• Imminent dangers;
• Fatalities/Serious injury reports
• Complaints/referrals Unprogrammed inspections may also be conducted as follow-up of previously conducted inspections.

These types of inspections typically comprise just over half of all inspections.

Once OSHA has decided to initiate an inspection, the OSHA compliance officer, before visiting the establishment or site, will become familiar with as many relevant facts as possible about the workplace, such as the:

• Inspection history of the establishment
• Nature of the business
• Standards that might apply

This preparation provides the compliance officer with a knowledge of the potential hazards and industrial processes that may be encountered. It also helps in the selection of appropriate personal protective equipment for protection against these hazards during the inspection.

When the OSHA compliance officer arrives at an establishment, he or she displays official credentials and asks to meet the safety and health manager or the owner of the establishment. If neither is available then the OSHA compliance officer will assign an employee as the employer’s representative. An OSHA compliance officer carries U.S. Department of Labor credentials bearing his or her photograph and a serial number that can be verified by calling the nearest OSHA office. Employers should always ask to see the officer’s credentials.

The OSH Act gives compliance officers the right to enter without delay to inspect. However, employers do have a right to refuse entry without a warrant, under the fourth amendment to the U.S. Constitution. Employers must recognize that OSHA compliance officers will obtain a warrant, and employers should expect that OSHA will conduct a more thorough inspection once obtaining the warrant. Note: In some cases, where OSHA anticipates a refusal, the agency may seek out a warrant before showing up to the site for the inspection.

Warrant applications for establishments where consent has been denied for a limited scope inspection (i.e., complaint, referral, and accident investigation) are normally limited to the specific working conditions or practices forming the basis of the inspection.

A broader inspection warrant may be sought only when there is reasonable belief, based on specific evidence (e.g., injuries or illnesses recorded in both OSHA forms 300 and 301, employee statements, or plain view observations), that violative conditions could be found in other areas of the workplace.

Ordinarily, injury and illness data from the OSHA 300 logs alone will not be sufficient to support a broader inspection, but OSHA 300 data in conjunction with other specific evidence — including incident report information from OSHA 301 forms, employee statements, or plain view observations — can be used to support an expanded inspection when the injuries or illnesses found in the OSHA 300 logs can be tied to a specific violative condition in the workplace.

For more information, see OSHA’s Field Operations Manual (CPL 02-00-163).

The first component of an OSHA inspection is the opening conference. During this conference, the compliance officer will explain why OSHA selected the workplace for inspection and describe the scope of the inspection (complaint, LEP, NEP, etc.), walkaround procedures, employee representation, and employee interviews. The employer then selects a representative to accompany the compliance officer during the inspection. An authorized representative of the employees, if any, also has the right to go along. In any case, the compliance officer will interview privately with a reasonable number of employees during the inspection.

OSHA places special importance on posting and recordkeeping. The compliance officer will inspect records of deaths, injuries, and illnesses that employers must keep. The officer will check to see that a copy of the OSHA 300A Summary has been posted and that the “Job Safety and Health — It’s the Law” workplace poster (OSHA 3165 or previous versions) is prominently displayed in a conspicuous place where employees can see it. OSHA requires that reproductions or facsimiles of the federal poster be at least 8.5 x 14 inches with 10 point type. The caption or heading on the poster must be in large type, generally not less than 36 point. Be aware that state-plan states may require a state version of the OSHA poster.

Where records of employee exposure to toxic substances and harmful physical agents have been required, they are also examined for compliance with the recordkeeping requirements. The officer may also ask to look at required inspection and training records and written programs, as well as the PPE hazard assessment.

After the opening conference, the compliance officer and accompanying representatives will begin the walkaround inspection looking for safety or health hazards. The route and duration of the inspection are determined by the complaint and the hazards encountered onsite but the compliance officer will guide you as to where to go.

The compliance officer may stop and question workers about safety and health conditions and practices in their workplaces during the walkaround, or he or she could also interview employees privately in one of your offices after the walkaround.

During the walkaround, compliance officers may point out some apparent violations that can be corrected immediately. While the law requires that these hazards must still be cited, prompt correction is a sign of good faith on the part of the employer.

If an employer corrects a violation on the spot while the inspector is there, it can lead to a 15 percent penalty reduction. This “Quick-Fix” penalty adjustment does not, however, apply to:

• Violations classified as “High Gravity Serious,” “Willful,” “Repeat,” or “Failure-To-Abate”;
• Violations related either to a fatal injury or illness, or to any incidents resulting in serious injuries to employees; or
• Blatant violations that are easily corrected (e.g., turning on a ventilation system to reduce employee exposure to a hazardous atmosphere, or putting on hard hats that are readily available at the workplace).

The OSHA inspector(s) will ask to speak with employees that have been injured, are witnesses to an injury, or any employees who have been exposed to dangerous hazards. The compliance officer is gathering evidence on how an injury happened and how many employees were injured, or how workers have been trained, procedures they follow, etc. Some officers will interview employees while they are doing the walkaround. Other inspectors will wait until the walkaround is finished to conduct interviews. In either case, the employer will not be allowed to be present during the employee interviews. Under the OSH Act, OSHA inspectors have the authority to interview employees privately.

The inspector will determine who to interview from the OSHA 300 logs or the walkaround. During the walkaround, the officer should have given the employer a heads up as to which employees he or she will want to interview. Otherwise, the officer will ask the employer for permission to speak with specific employees once the walkaround is completed. If the employees to be interviewed are not at the facility, the officer can arrange to come back to do interviews at a different time or notify the employer that he or she will interview the missing employee(s) over the phone.

After the walkaround, the compliance officer holds a closing conference with the employer and the employee representatives to discuss the findings. The compliance officer discusses possible courses of action an employer may take following an inspection, which could include an informal conference with OSHA or contesting citations and proposed penalties. The compliance officer also discusses consultation and employee rights.

During the inspection, the compliance officer will have a good idea of which standards were violated (or of the employer’s General Duty obligation under the OSH Act). After the inspection, the compliance officer makes recommendations to the OSHA Area Office director regarding any alleged violations.

The OSHA Area Director is the person who actually determines if citations will be issued. OSHA must issue a citation and proposed penalty within six months of the violation’s occurrence.

Citations describe OSHA requirements allegedly violated, list any proposed penalties, and give a deadline for correcting the alleged hazards.

The compliance officer will give you a call approximately two weeks before you can expect the violations to be sent in the mail. OSHA sends citations of proposed penalties by certified mail. Employers are required to post a copy of each citation at or near the place a violation occurred, for three days or until the violation is abated, whichever is longer.

Note that on multi-employer worksites, more than one employer may be citable for a hazardous condition that violates an OSHA standard. Under the agency’s Multi-Employer Citation Policy (CPL 02-00-124), OSHA will first determine whether each of the site employers is a creating, exposing, correcting, or controlling employer. If an employer falls into one of these categories, it has obligations with respect to OSHA requirements, and the agency will determine if the employer's actions were sufficient to meet those obligations.

Before determining the amount of a penalty, OSHA has to categorize the violation. Violations are classified as:

• Serious — A violation where there is a substantial probability that death or serious physical harm could result, and the employer knew or should have known of the hazard; carries proposed penalty of up to $14,502 but not less than $1,036.
• Other-Than-Serious — A violation having a direct relationship to safety and health, but the most serious injury or illness that could reasonably be expected to result from an employee’s exposure would not be severe; no penalties are usually proposed, but can be as high as $14,502.
• Willful — A violation that the employer intentionally and knowingly commits or the employer has received several different repeat violations. It carries a maximum penalty of $145,027 but not less than $10,360.
• Repeat — A violation that is similar to a previously cited violation at the same company location, or at other locations of the same company, within the previous five years; carries a minimum penalty of $10,360 and maximum penalty of $145,027. Note that a court has stated that the five-year lookback as prescribed in OSHA’s Field Operations Manual (FOM) is only a guide, and there’s no statutory time limit on the length of time that a previously issued citation can be used as a basis for a repeat violation.
• Failure=To-Post — A violation of OSHA’s posting requirements caries a penalty up to $14,502.
• Failure-To-Abate — A violation cited previously but not corrected within the prescribed abatement period; carries a $14,502 per day penalty maximum.

In November 2015, Congress passed a law requiring federal agencies to adjust their civil penalty amounts for inflation. At that time, OSHA was allowed a one-time “catch-up adjustment” that increased penalty amounts by 78 percent. Penalty amounts will continue to be adjusted for inflation no later than January 15 every year. State-Plan States must adopt maximum penalties that are at least as stringent as federal OSHA’s penalty amounts.

Criminal referrals

It should be noted that OSHA’s legal arm has made a number of criminal referrals to the U.S. Department of Justice and forged more partnerships with state/local prosecutors to punish employers under state criminal statutes. OSHA explains that the timely prosecution of an individual within the community in which he or she works and where the victim often resided has a strong deterrent effect in the industry and sends a signal to the OSHA-regulated community that behavior that results in a fatality or significant worker injury or illness will not be tolerated. In a nutshell, criminal enforcement is an effective tool, according to the agency.

OSHA assesses penalties with consideration to four factors:

• The gravity of the violation;
• Size of the employer’s business;
• The good faith of the employer; and
• The employer’s history of previous violations.

Gravity of the violation

The gravity of the violation is the primary consideration in determining penalty amounts. It is the basis for calculating the basic penalty for Serious and Other-Than-Serious violations. (Repeat and Willful violations can be based on the initial Serious or Other-Than-Serious gravity-based penalty but are multiplied by five to 10 times).

To determine the gravity of a violation, OSHA makes the following two assessments:

• The severity of the injury or illness which could result from the alleged violation.
• The probability that an injury or illness could occur as a result of the alleged violation.

After OSHA has determined the gravity and probability of a violation, a Gravity Based Penalty (GBP) is assessed based on a pre-determined range from OSHA. See the agency's latest "Annual Adjustments to OSHA Civil Penalties" memo for details.

Size of the employer

Once a base penalty has been calculated using the Gravity-Based Penalty system, OSHA may then assign a reduction based on certain factors, including size of the employer. The size adjustment factor allows for the following maximum penalty reductions:

• 70 percent for employers with 1-10 employees
• 60 percent for employers with 11-25 workers
• 30 percent for employers with 26-100 workers
• 10 percent for employers with 101-250 workers

Employers with more than 250 workers will not receive a penalty reduction for size. Note: “Size” of an employer is calculated on the basis of the maximum number of employees for an employer at all workplaces nationwide, including State Plan States, at any one time during the previous 12 months.

For violations that are Serious Willful, the following reductions are applied instead. These reductions help minimize the impact of large penalties for small employers with 50 or fewer employees. However, in no case shall the proposed penalty be less than the statutory minimum for these employers:

• 80 percent for employers with 10 or fewer employees
• 60 percent for employers with 11-20 employees
• 50 percent for employers with 21-30 employees
• 40 percent for employers with 31-40 employees
• 30 percent for employers with 41-50 employees
• 20 percent for employers with 51-100 employees
• 10 percent for employers with 101-250 employees
• 0 percent for employers with 251 or more employees

Good faith

There may be up to an additional 25 percent reduction for evidence that the employer is making a good faith effort to provide a safe and healthy workplace.

• 25 percent for having a written and implemented safety and health program.
• 15 percent for having a documented and effective safety and health program, but with more than only incidental deficiencies.

No good faith reduction is given to employers with no safety and health program or where a Willful violation is found.

Employer history

A 10 percent reduction in proposed penalties may be given if employers have not been cited by OSHA for any Serious, Willful, Repeat, or Failure-To-Abate violations in the past five years.

On the other hand, OSHA may assess up to a 10% increase in penalties (up to the statutory maximum) if employers have been cited for any high-gravity Serious, Willful, Repeat, or Failure-To-Abate violation in the past five years.

After OSHA completes an inspection, they generally have six months from that time to issue an employer citations for violations of OSHA standards. An employer who receives an OSHA citation may take either of the following courses of action:

• If the employer agrees to the Citation and Notification of Penalty, the employer must correct the condition by the date set in the citation and pay the penalty, if one is proposed. If the employer fails to pay the penalty on time, OSHA may use reminder and demand letters, put late employers on debtor lists, threaten extra charges for delinquency, or refer debts to the Treasury or Justice Departments.
• If the employer does not agree with the Citation and Notification of Penalty, the employer has 15 working days from the date of receiving the citation to contest in writing any or all of the following: citation, proposed penalty, and/or abatement date.

Before deciding whether to file a Notice of Intent to Contest, the employer may request an informal conference with the OSHA Area Director to discuss the Citation and Notification of Penalty. The employer may use this opportunity to do any of the following:

• Obtain a better explanation of the violations cited;
• Obtain a more complete understanding of the specific standards that apply;
• Negotiate and enter into an informal settlement agreement;
• Discuss ways to correct violations;
• Ask for a reduction in penalty amounts;
• Discuss problems concerning the abatement dates;
• Discuss problems concerning employee safety practices;
• Resolve disputed citations and penalties, (thereby eliminating the need for the more formal procedures associated with litigation before the Review Commission); and
• Obtain answers to any other questions the employer may have.

OSHA encourages employers to take advantage of the opportunity to have an informal conference if they foresee any difficulties in complying with any part of the citation. Employee representative(s) have the right to participate in any informal conference or negotiations between the OSHA Regional Administrator or Area Director and the employer.

Note: The informal conference must be held within the 15-working-day Notice of Intent to Contest period and will neither extend the 15-working-day contest period nor take the place of the filing of a written notice if the employer desires to contest.

If an employer wishes to contest any portion of a citation, it must submit to OSHA a Notice of Intent to Contest in writing within 15 working days after receipt of the Citation and Notification of Penalty. This applies even if the employer has stated disagreement with a citation, penalty, or abatement date during a telephone conversation or an informal conference. The Notice of Intent to Contest must clearly state what is being contested — the citation, the penalty, the abatement date, or any combination of these factors. In addition, the notice must state whether all the violations on the citation, or just specific violations, are being contested. (For example, “I wish to contest the citation and penalty proposed for items 3 and 4 of the citation issued June 27, 2018.”)

A proper contest of any item suspends the employer’s legal obligation to abate and pay until the item contested has been resolved. The employer has to submit its case to the Occupational Safety and Health Review Commission. Before going to court the Area Director may try to settle the case. The Commission assigns the case to an administrative law judge who usually will schedule a hearing in a public place close to the employer’s workplace. Both employers and employees have the right to participate in this hearing, which contains all the elements of a trial, including examination and cross-examination of witnesses.

Employers may choose to represent themselves or have legal representation. The administrative law judge may affirm, modify, or eliminate any contested items of the citation or penalty. As with any other legal procedure, there is an appeals process. Once the administrative law judge has ruled, any party to the case may request a further review by the full Review Commission. In addition, any of the three commissioners may, on his or her own motion, bring the case before the entire Commission for review. The Commission’s ruling, in turn, may be appealed to the circuit in which the case arose or for the circuit where the employer has his or her principal office.

OSHA assigns abatement dates on the basis of how soon a correction/abatement can be made by the employer when issuing the citation. Failure-to-abate the hazards by the abatement date are calculated per day and can be costly.

However, if the employer is unable to meet an abatement date because of uncontrollable events or other circumstances, and the 15-working-day contest period has expired, they may file a Petition for Modification of Abatement (PMA) with the OSHA Area Director. The petition must be in writing and must be submitted as soon as possible, but no later than one working day after the abatement date. To show clearly that the employer has made a good-faith effort to comply, the PMA must include all of the following information before OSHA considers it:

• Steps taken to achieve compliance, and dates they were taken;
• Additional time needed to comply;
• Why additional time is needed;
• Interim steps being taken to safeguard employees against the cited hazard(s) until the abatement;
• A certification that the petition has been posted, the date of posting and, when appropriate, a statement that the petition has been furnished to an authorized representative of the affected employees. The petition must remain posted for 10 working days, during which employees may file an objection.

The OSHA Area Director may grant or oppose a PMA. If it is opposed, it automatically becomes a contested case before the Review Commission. If a PMA is granted, OSHA may conduct a monitoring inspection to ensure that conditions are as they have been described and that adequate progress has been made toward abatement. The OSHA Area Office may provide additional information on PMAs.