Surviving an OSHA inspection

– By  Mark Ward Sr. –

Few things strike fear in the hearts of many rural builders more than the thought of an Occupational Safety and Health Administration (OSHA) inspector showing up unannounced at a job site. For a “survival guide,” Rural Builder spoke with three leading safety professionals for the post-frame building industry. In the words of one, “If you have a robust safety program to begin with, there’s not so much to worry about. The best defense is a good offense.”

Attorney Gary Auman is legal counsel for the National Frame Building Association and, as a director of the Dunlevey, Mahan & Furry law firm in Dayton, Ohio, focuses his practice on occupational safety and health law and workers’ compensation defense. Katy Tiller is human resources and safety manager for Wick Buildings, where she supervises a safety program that covers the Wick manufacturing plant in Mazomanie, Wisconsin, and 23 building crews active in five Midwestern states. And Stan Virkler served 14 years as safety director for FBi Buildings, a post-frame contractor that services 10 states from its headquarters in Remington, Indiana.

These three professionals each address the topic of dealing with OSHA inspections from the perspective of rural and post-frame builders, a segment of the construction industry whose concerns and circumstances may differ from other segments. Are OSHA inspections likely in rural locations? Does the agency have much interest in the smaller projects typical of post-frame construction? Can rural builders even justify a “robust” safety program against concerns that formalized procedures slow them down and cost them money? What resources are available to draft a safety program, anyway? And what do you do when an OSHA inspector shows up?

Gary Auman, Legal Counsel
National Frame Building Association

Q: What do you tell someone who says, “I’m just a small rural builder and don’t have much risk of an OSHA inspection”?

GA: Rural isn’t “rural,” anymore. As our cities and our population grows, building activity that used to be “in the middle of nowhere” is no longer so remote. Also, the growing popularity of post-frame construction for commercial buildings means that more of these projects are occurring closer to urbanized areas.
Then, too, OSHA gets around more than you might think. I get on average about one call a month from post-frame builders who were visited by an inspector who happened to be driving down the road. At the same time, farm accidents are getting more attention so that OSHA is putting more emphasis on agricultural buildings.
Finally, starting in 2015, if you have an accident and your employee is hospitalized overnight then you’re required to self-report to OSHA within 24 hours.

Q: So the increased risk of an OSHA inspection justifies greater investment by rural builders in safety programs?

GA: Such a justification is a wrong focus. If your approach to safety is simply doing enough to comply with OSHA regulations, you’re setting yourself up for failure. By doing only the minimum to “get by,” you’re already putting yourself on the edge of what’s acceptable.
First, you need an effective safety program because it’s the right thing to do.

Second, promoting a “safety culture” makes you more efficient, not less. That’s because your crews know what to do. Let’s say they have to work at a height. Instead of wondering how to keep their balance, they know the correct safety procedure and simply go and do their jobs.

The problem is that many builders simply practice “train-and-release.” They take the attitude, “I provide the training and equipment. After that, it’s the employees’ responsibility.” But a true culture of safety requires management buy-in. You’ve got to be involved in safety all the time. For example, you can’t just bid on a job and think of safety expenditures later as an add-on. You have to “think safety” and include it in your bid.

Third, though a safety program requires some investment, it can save you money through accident prevention, less downtime, decreased workers compensation claims, and avoiding loss of skilled labor. When you lose a skilled worker in an accident, you not only have to compensate that person, you have to pay someone else to do the work. So you’re paying two people to do one job—and may very well end up paying higher workers compensation insurance premiums, too.

Finally, as post-frame builders go for more commercial projects, you’ll find that owners and general contractors will look at your safety program and safety record. About 99 percent of pre-qualification forms ask, “Have you had an OSHA citation in the last three years?” If so, chances are you’re out of the bidding.

Q: What safety pitfalls are more common to post-frame construction and thus increase the risks of being cited by OSHA?

GA: Lack of fall protection and personal protection are big. Even conscientious builders can let things slip, especially when employees think the safety equipment slows them down. Ladder and scaffolding safety are two other issues common to post-frame building. Unsafe use of scissor lifts and bucket lifts can lead to OSHA citations.
Another trend I see is more inspections that rely on OSHA’s General Duty Clause. Under the rule, employers have a general duty to “provide their employees with a place of employment that is free of recognized hazards that are causing or likely to cause death or serious physical harm.” Since the agency knows it can take up to a decade to finalize a new rule, they can use the General Duty Clause to deal with perceived imminent hazards.
Distracted driving is an example. The technology for cell phones keeps advancing and people are using them more for texting and other messaging. It could take a long time for OSHA to promulgate a specific rule on distracted driving. So last year OSHA declared that it considers texting while driving to be a recognized hazard and, therefore, the General

Duty Clause applies.
Thus, you could receive an OSHA citation if you don’t have a policy that prohibits texting while driving. Also, you can be cited if you require workers to text while driving, or if you create incentives to text while driving, or even if you structure work expectations so that texting while driving is a practical necessity.

Q: Assuming you have a safety program in place, what do you do when an OSHA inspector shows up on your work site?

GA: First, the site supervisor or foreman should contact the company owner or appropriate company authority. Is the site supervisor authorized to deal with the inspector or not? Next, the authorized person should ask the inspector: Why are you here? Did you drive by and see us? Is this part of an OSHA emphasis program? Did you receive a complaint?

Ask to see the complaint and try to limit the inspection to that specific issue. Conduct a pre-inspection conference where you ask what the inspector wants and then seek an agreement to limit the inspection. Suspend employee activity until the inspection is done. If the inspector sees employees working and perceives any safety issues, that can be added to the inspection. Never leave the inspector alone. And when he or she takes photos or measurements, take duplicates. Finally, be sure to enforce your safety rules during the inspection. The ultimate goal is to limit the inspection and get the inspector off site.

Q: Many rural builders are smaller operations and may not know where to begin in drafting a safety program. What resources can you recommend?

GA: The OSHA website is a great place to start. They have lots of material—and you’re anonymous and won’t be tracked. You can also Google terms like “construction industry safety program” or “toolbox talks” and find lots of leads. Also, the National Safety Council and the National Frame Building Association have helpful resources.

Katy Tiller, Safety Manager
Wick Buildings

Q: Tell us about your safety program.

KT: We’ve implemented a new approach over the past two years. Before, we gave incentives to foremen and crews who had no accidents. But then OSHA told us we couldn’t do that. Rewarding “no accidents,” they said, could encourage our people not to report accidents.

We still have safety incentives but now they’re based on a point system. Foremen and crews get “PAS” points for Proactive Acts of Safety. For example, when someone is injured, points are given if the incident is promptly reported—or points deducted if it’s not. Or points are given for conducting a toolbox talk, especially if the talk isn’t just generic but is geared to the conditions of the specific site or addresses a near-miss that recently happened.

Also, we’ve decentralized our safety program. We still have an annual three-day safety training program for all 100-plus employees. But we’re asking crews to give us input on safety issues for their specific work sites. This is in addition to our Safety Committee—whose members include field supervisors and foremen.

Our emphasis is not just simple OSHA compliance. We believe “authorship equals ownership.” If our people have input on safety issues that directly affect them, that will increase buy-in and keep things fresh. At the same time, management must also be committed to the program. Safety starts at the top—from our owner, Tom Wick, on down.

Q: Doesn’t all this cost a lot of money? How do you justify it?

KT: Yes, our safety program is a cost item. But if you prevent just one person from falling off a roof, then you’ve probably paid for your whole safety program. Also, there’s a marketing aspect. We want to recruit and retain the best crews. And when we bid a job, the owner or general contractor wants to know that we have a robust safety program.

Q: What do you say to any builder who thinks rural sites are less likely to be inspected?

KT: You’re not as invisible as you think. After all, you had to take out a building permit—and that permit is on file where an OSHA inspector can see it. I’ve been safety manager for five years and we haven’t had an OSHA inspection prompted by an employee complaint. So in my experience, the reasons that post-frame builders are most likely to be inspected are because an OSHA inspector happened to be driving by or because OSHA is conducting an emphasis program about a particular safety concern.

Q: What safety liabilities in post-frame construction are likeliest to trigger OSHA citations?

KT: I’d say fall protection, personal protection, and tool maintenance. Crews often work at heights and, in our business, they handle metal building materials with sharp edges. Then, too, it’s easy to forget that our tools take a real beating. If they’re not properly maintained, accidents can occur.

Q: When an OSHA inspector shows up, what protocol do you follow?

KT: We ask for the inspector’s identification, stop all work on the site, call the main office, conduct an opening pre-inspection conference, and try to limit the area to be inspected. OSHA inspectors won’t get mad at the delay; they’re reasonable people and expect you to do all these things. Then during the inspection, we take notes or pictures of what the inspector does. Finally, we have a closing conference with the inspector.

Q: For rural builders intimidated by the idea of writing a formal safety program, what resources do you suggest to get started?

KT: Your workers compensation insurance carrier will have a lot of resources. Also check out the OSHA website. And talk with other builders, either informally or through a local, state, or national association. As a post-frame construction industry we need to come together and implement best safety practices. If we take safety seriously, OSHA won’t be a problem.

Stan Virkler, Former Safety Director
FBi Buildings

Q: What’s your current role at FBi Buildings?

SV: I’ve been with the company 36 years, including 14 as safety director. Last year I semi-retired but have stayed with the company as a consultant.

Q: Over your years as safety director, how did you build a culture of safety?

SV: A good safety culture is more than your mission statement. It’s the values that shape how everyone performs their work. Do crews think their interests are in taking the easy road? Does management assume speedy completion is the highest good? Instead, you’ve got to make safety a “given” so that people act safely even when nobody’s watching and everyone cooperates in safe practices. Again, safety isn’t just a priority; it’s a value.

We don’t want employees worried about retaliation if they report concerns or incidents. Then we follow through on reports—and hold people accountable if we have to—so that crews won’t think that management doesn’t care. When crews see their input makes a difference, they’re more likely to “own” their safety rather than figure it is management’s responsibility and not theirs. Therefore, we ask our crews what the job site hazards are and for their ideas on improving safety. Then we involve them in implementing the rules and choosing any safety and personal protective equipment we buy. Workers are represented on our Safety Committee. And every year we survey employees about their impressions of our commitment to their safety and welfare.

I also guarded against seven “safety culture toxins.” My philosophy was, “Workers are not the problem.” The seven toxins are leaders who put deadline first, seldom visit job sites, don’t encourage input and agreement on safety rules, are lax about employee welfare, respond slowly or not at all to hazards and accidents, wink at failure to report, and allow or engage in finger-pointing. We regard foremen as management, hold them accountable, and praise them for good safety performance.

Of course, safety requires commitment from the top. It takes effort to have weekly toolbox talks, to take attendance, to do daily and weekly site inspections, to fill out the forms, to do unannounced safety audits, to generate quarterly safety performance reports—and then to track all the data and follow through on improvements. But when safety becomes a company value, you can tell. You’ll get more safety suggestions from crews. They’ll even volunteer for the Safety Committee. You’ll see crew members stretching out their muscles before starting work. They’ll report “near misses” that were previously unreported. They’ll expect the job to be shut down until a hazard is dealt with. Foremen will take responsibility to discipline safety violations by their own crews. And most important, accidents will decrease.

Q: Rural builders can do all that and still get inspected by OSHA. What are the most common reasons that post-frame builders are inspected?

SV: The first reason is drive-bys. An OSHA inspector drives by and happens to see someone who’s on the roof and not tied off, or cutting concrete without respiratory protection. After that, I’d say common reasons are random OSHA inspections, employee complaints, union complaints, and public complaints. Also, you’re now required to inform OSHA within 24 hours if an injured employee is hospitalized overnight. As rural builders you might think you’re risk of an inspection is small, but any of the triggers I’ve described could happen at any time.

Q: When any of those happen and the OSHA inspector arrives, what do you do?

SV: Your company safety program should include a protocol for the job site leader to follow. In fact, they should be trained in that procedure beforehand. That way, they’ll know to verify the inspector’s identity and then call the company safety director or other authorized person. They’ll know to always be courteous but not to volunteer information, and to answer questions directly but not to add anything.

You should have on hand the forms that the inspector will want to see—for example, your safety program, your hazard communication program, your fall protection plan, and your OSHA Form 300 Log of Work-Related Injuries and Illnesses. In the opening conference and during the inspection, try to limit the inspection to the complaint. When the inspector takes a picture, you take the same picture. Then at the closing conference, capture as much of the conversation as you can and ask questions: Are we going to be cited? For what?

Q: The thought of being inspected is fearful for many rural builders. What has been your experience with OSHA inspectors?

SV: Ultimately, you and the inspector have the same goal—namely occupational safety and health. They were always reasonable and I came to see them as friends of our company. In fact, three times we invited the OSHA training and education arm in our state to go over our sites. If OSHA has a training and education office in your state, it’s a great resource. And if they come at your request for training and education purposes, you won’t be cited if they see anything. RB

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