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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 pamphlet 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
Recordkeeping and Reporting
Guidelines for Federal Agencies-OSHA 2014
can be obtained from OSHA, Office of
Federal Agency Programs, 200 Constitution
Avenue, N.W., Room N3112, Washington, D.C.
20210, (202) 219-9329.
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