Federal
Employer Rights and Responsibilities
Following an OSHA Inspection-1996
AFTER
AN INSPECTION
An inspection of your
workplace was conducted in
accordance with the Occupational
Safety and Health Act of 1970,
Executive Order 12196, and
29 CFR Part 1960, Basic Program
Elements for Federal Employee
Occupational Safety and Health
Programs and Related Matters.
The compliance safety and health
officer (CSHO) who conducted
the inspection has found conditions
that are in violation of the
Act, Executive Order 12196,
or 29 CFR Part 1960, and you
have been issued a Notice of
Unsafe or Unhealthful Working
Conditions, OSHA-2H Form (OSHA
Notice) that explains in detail
the exact nature of the alleged
violation(s).
This
contains important information
regarding your rights and
responsibilities under the
Act, Executive Order 12196,
and 29 CFR Part 1960. For
each apparent violation
found during the inspection,
the compliance officer discussed
the following with you:
•The
nature of the violation,
•Possible abatement measures you may take to correct
the violative condition, and
•Possible abatement dates you may be required
to meet.
TYPES
OF VIOLATIONS
WILLFUL: A willful violation
is defined as a violation in
which the employer either knowingly
failed to comply with a legal
requirement (purposeful disregard)
or acted with plain indifference
to employee safety.
SERIOUS:
A serious violation exists
when the workplace hazard
could cause an accident
or illness that would most
likely result in death or
serious physical harm, unless
the employer did not know
or could not have known
of the violation.
REPEATED:
A Federal agency may be
cited for a repeated violation
if the agency has been cited
previously for the same
or a substantially similar
condition and, for a serious
violation, OSHA's regionwide
(see last page) inspection
history for the agency lists
a previous OSHA Notice issued
within the past 3 years;
or, for an other-than-serious
violation, the establishment
being inspected received
a previous OSHA Notice issued
within the past 3 years.
OTHER-THAN-SERIOUS:
A violation that has a direct
relationship to job safety
and health, but is not serious
in nature, is classified
as "other-than-serious."
POSTING
REQUIREMENTS
When you receive an OSHA Notice, you must post
it (or a copy of it) at or near the place where
each violation occurred to make employees aware
of the hazards to which they may be exposed.
The OSHA Notice must remain posted for 3 working
days or until the hazard is abated, whichever
is longer. (Saturdays, Sundays and Federal holidays
are not counted as working days).
EMPLOYER
OPTIONS
As an employer who has been cited, you may:
Correct
the condition by the date
set in the OSHA Notice and/or,
Request
an Informal Conference within
15 working days from the
time you received the OSHA
Notice with the OSHA Area
Director to discuss the
violations and/or the abatement
dates.
HOW
TO COMPLY
For violations cited in the OSHA Notice, you
must promptly notify the OSHA Area Director by
letter that you have taken the appropriate corrective
action within the time set forth in the OSHA
Notice. The notification you send the Area Director
is generally referred to as a LETTER OF CORRECTIVE
ACTION. It must explain the specific action taken
with regard to the violation and state the date
each corrective action was taken.
If
you have abatement questions
after the inspection, they
should be discussed with
the Area Director in the
informal conference.
When
the OSHA Notice permits
an extended period of time
for abatement, you must
insure that employees are
adequately protected during
this time. If this is the
case, you must provide OSHA
with a periodic progress
report on your actions taken
in the interim.
INFORMAL
CONFERENCE
You may request an informal conference with
the OSHA Area Director to discuss the violations.
You may use this opportunity to do any of the
following:
•Obtain
a better explanation
for the violations cited.
•Obtain a more complete understanding of the specific
standards that apply.
•Discuss ways to correct violations.
•Discuss problems concerning the abatement dates.
•Discuss problems concerning employee safety practices.
•Resolve disputed violations.
•Obtain answers to any other questions you may
have.
You
are encouraged to take advantage
of the opportunity to have
an informal conference if you
foresee any difficulties in
complying with any part of
the OSHA Notice. Employee representatives
have the right to participate
in any informal conference
or negotiations between the
Area Director or Regional Administrator
and the employer.
If
you agree that the violations
do exist, but you have a
valid reason for wishing
to extend the abatement
date(s), you may discuss
this with the Area Director
during the informal conference.
The Area Director may issue
an amended OSHA Notice that
changes the abatement date
prior to the expiration
of the 15 working day period.
Every
effort will be made to resolve
the issues at an informal
conference. If, however,
an issue is not resolved
by the Area Director, a
summary of the discussion
together with the agency's
position on the unresolved
issues shall be forwarded
to the Federal Agency Program
Officer (FAPO) within 5
working days of the informal
conference.
•The
FAPO/Regional Administrator
will confer with the appropriate
Regional agency official
before making a decision
on the unresolved issues.
• If the FAPO/Regional
Administrator, in consultation with
the Area Director, decides that the
item in question should remain unchanged
on the OSHA Notice, the appropriate
agency officials shall be advised.
•If there is still
an unresolved issue after the Regional
review, the agency may send a letter
of appeal to OSHA's Office of Federal
Agency Programs (OFAP).
•OFAP will review the
disputed issues and discuss these with
top agency officials, as appropriate,
to obtain resolution. The decision
at the National Office level, in consultation
with the Regional Administrator, FAPO,
and Area Director, is final.
•Under the OSHA Act,
Executive Order 12196 and 29 CFR Part
1960, Federal agencies do not have
the right to contest the OSHA Notice.
PETITION
FOR MODIFICATION OF ABATEMENT
(PMA)
Abatement dates are assigned on the basis of
the best information available at the time the
OSHA Notice is issued. When you are unable to
meet an abatement date because of uncontrollable
events or other circumstances, you may file a
Petition for Modification of Abatement (PMA)
with the OSHA Area Director.
The
petition must be in writing
and must be submitted no
later than one working day
after the abatement date.
To show clearly that you
have made a good-faith effort
to comply, the PMA must
include all of the following
information before it can
be considered:
•Steps
you have taken in an effort
to achieve compliance and
dates they were taken;
•Additional time you
need to comply;
•Why you need the additional
time;
•Interim steps you
are taking to safeguard your employees
against the cited hazard(s) until the
abatement; and
•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.
•A PMA may be granted
or objected to by the OSHA Area Director.
If a PMA is granted, a monitoring inspection
may be conducted to ensure that conditions
are as they have been described and
that adequate progress toward abatement
has been made.
When agreement to extend
the abatement date cannot be
reached at the Area Office,
the agency may bring unresolved
issues to the Regional Administrator/FAPO
for resolution with his counterpart
in the agency. Issues not resolved
at the regional level shall
be forwarded to the Director,
OFAP, for resolution with agency
headquarters in consultation
with the Regional Administrator,
the FAPO, and the Area Director.
Further
information on PMAs may
be obtained from any OSHA
Area/District office.
ALTERNATE
STANDARDS
Agency heads may apply for approval of an alternate
standard where deemed necessary and, after consulting
with employees or their representatives, including
appropriate safety and health committees, notify
the Secretary of Labor and request approval of
such standards. The Secretary will not approve
alternate standards unless it provides affected
employees equivalent or greater protection.
The
agency head must provide
the Secretary with the following:
•A
statement of why the agency
cannot comply with the OSHA
standard or wants
to adopt an alternate standard;
•A description of the
alternate standard;
•An explanation of
how the alternate standard provides
equivalent or greater protection for
the affected employees;
•A description of interim
protective measures afforded employees
until a decision is rendered by the
Secretary of Labor; and
•A summary of written
comments, if any, from interested employees,
employee representatives, and occupational
safety and health committees.
Employees
and other interested groups
are encouraged to participate
in the alternate standard
process.
EMPLOYEE
COURSES OF ACTION
Employees or their authorized representatives
may object to any or all of the abatement dates
set for violations if they believe them to be
unreasonable. A written notice of their objections
must be filed with the OSHA Area Director within
15 working days after the employer receives the
OSHA Notice.
The
filing of an employee objection
does not suspend the employer's
obligation to abate the
hazard(s).
Employees
also have the right to object
to a PMA. Such objections
must be in writing and must
be sent to the Area Office
within 10 days of service
or posting.
FOLLOWUP
INSPECTION AND FAILURE TO
ABATE
If you receive a Notice of Unsafe or Unhealthful
Working Conditions, a followup inspection may
be conducted to verify that you have done the
following:
•Posted
the OSHA Notice as required,
•Corrected the violations
as required in the OSHA Notice, and/or
•Adequately protected
employees and made appropriate progress
in correcting the hazards during multi-step
or lengthy abatement periods.
•Any new violations
discovered during a followup inspection
will be cited, as well as any hazards
which have not been abated by the abatement
date so specified on the OSHA Notice.
The latter violations will be cited
in the form of a Failure to Abate Notice.
EMPLOYER DISCRIMINATION
Executive Order 12196 and 29 CFR
Part 1960.46 prohibit Federal agencies
from discharging or otherwise discriminating
against an employee who has exercised
any right under these laws, including
the right to make safety and health
complaints or to request an OSHA inspection.
In addition, Federal employees may
have protection for such activity under
the Whistleblower Protection Act of
1989.
Complaints
from employees who believe
they have been discriminated
against will be investigated
by the Office of Special
Counsel except in those
agencies not covered by
the Whistleblower Act. Agencies
exempted from the Whistleblower
Act are:
•A
government corporation,
such as the Tennessee Valley
Authority;
•the Central
Intelligence Agency, Defense
Intelligence Agency,
•National Security Agency, or certain
other intelligence agencies excluded by the President;
•the General Accounting
Office;
•the U.S. Postal Service
or Postal Rate Commission;
•the Federal Bureau
of Investigation; and,
•Federal prisoners.
If
the Federal employee's agency
is exempted from the Whistleblower
Act, the alleged reprisal
is forwarded to the agency's
Designated Agency Safety
and Health Official (DASHO).
There
is no time limit for filing
a complaint with the Office
of Special Counsel. To obtain
further information on this
matter, employees may contact
OSHA and/or the Office of
Special Counsel.
PROVIDING
FALSE INFORMATION
All information reported
to OSHA by employers and employees
must be accurate and truthful.
ADDITIONAL
INFORMATION
For further information and assistance, please
contact your OSHA Area Director.
RELATED
PUBLICATIONS
A single free copy of the following materials
can be obtained from the OSHA Publications Office,
200 Constitution Avenue, N.W., Room N3101, Washington,
D.C. 20210, (202) 219-4667
Chemical
Hazard Communication-OSHA
3084
How to Prepare For Workplace Emergencies-OSHA
3088
Job Hazard Analysis-OSHA 3071
29 CFR Part 1960, Basic Program Elements for
Federal Employee Occupational Safety and Health
Programs and Related Matters
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