Safety Corner
“Safety applies with equal force to the individual, to the family, to the employer, to the state, the nation and to international affairs. Safety, in its widest sense, concerns the happiness, contentment and freedom of mankind."
Prevention Each Day Keeps the Inspector Away
Understanding occupational safety and health enforcement
By Sean Dewalt

he Occupational Safety and Health Act of 1970 authorized the US Secretary of Labor to set “mandatory occupational safety and health standards applicable to businesses affecting interstate commerce, and by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under the Act.” This act, also known as the Williams-Steiger Occupational Safety and Health Act, gave the new Occupational Safety and Health Administration (OSHA) sweeping powers to create minimum safety standards, interpret these standards, and enforce these standards through administrative procedure.

The act also provided an avenue where states could adopt their own programs with federal approval, monitoring, and oversight. These state plans “must be at least as effective as OSHA in protecting workers and in preventing work-related injuries, illnesses, and deaths.” The Alaska Occupational Safety and Health statutes, AS 18.60.010 – 105, became effective on July 24, 1973. Alaska completed the development steps by creating the Alaska Occupational Safety and Health (AKOSH) section within the Alaska Department of Labor. The state plan received final approval by the US Department of Labor on September 26, 1984.

OSHA continues to have authority over large segments of Alaska workplaces, including all military installations, national parks, the US Postal Service, offshore oil platforms, and longshoring at cargo ports. AKOSH has jurisdiction over most general industries, including city and state employers, land-based oil and fish processing, and construction.

It is important to understand that AKOSH has program directives. These programs dictate a fair amount of what AKOSH focuses on for inspections and detail the purpose and scope of the directive. Many of these directives last several years and can range from a local or national emphasis program to reduce and/or eliminate occupational safety and health hazards in the construction industry to recordkeeping regarding COVID-19 for healthcare employers. Knowing AKOSH’s priorities allow an organization to increase awareness of the potential enforcement visit and tighten up safety plans and programs, educate company safety committees, and increase or enhance training for affected employees.

Be Normal
Another AKOSH directive is the high hazard targeting system, a program-planned system to assess target selection for enforcement inspections. This program enables AKOSH to quickly assess which employers have higher-than-normal rates of loss time incidents. According to the rule, “Employers with three or more lost time incidents as reported through the Alaska Division of Workers’ Compensation database for the previous year shall be identified and placed on a list. Each employer will then be evaluated based on the number of loss time incidents in comparison to the number of workers employed to determine the employer’s loss time rate per 100 employees. Those employers with lost time rates in excess of 90 percent of the overall average loss-time rate for all employers in Alaska as outlined in the AKOSH Performance listed for the most recent fiscal year shall be placed on a targeted list of employers.” A letter is sent to the employer as notice that there is a high likelihood of an AKOSH enforcement inspection resulting from the number of loss time incidents.

The multifaceted solution to this issue is to double down on assessing exposures and applying controls for workers along with increased safety training for affected employees. Utilize external resources such as consultants, insurance company loss control professionals, and safety managers to reduce the frequency of worker injuries. Remember, investigating smaller injuries or near misses for root cause and hazard mitigation will often prevent larger loss time incidents.

Having a formalized, written plan for an OSHA inspection is another tool that can help employers stay a step ahead when a Compliance Safety and Health Officer knocks on your door. Understanding both the responsibilities of the employer and employees along with the inspection process from start to finish is key. Knowing what to do or what not to do could be the difference between a citation and no citations. Strategies for working through an OSHA visit vary greatly, and each company should take an individualized approach to this administrative inspection.

You’re Cited. Now What?
If a citation is received, read through the entire notice carefully. An entity only has fifteen days to contest a citation. There are posting requirements as well, and the employer must comply with these posting requirements even if the citation is contested. Failure to follow posting requirements is a violation and can result in a penalty. If the employer fails to notify the OSHA Review Board of intent to contest the citation or proposed penalty within fifteen working days, the citation and the penalty assessment, as proposed, are considered final and not subject to review by any court. The company must also correct the violation in the citation. It is best to do this immediately and document the hazard mitigation.

Before deciding whether to file a written Notice of Intent to Contest, the company may request an informal conference with the OSHA Area Director to discuss the citation and notification of penalty. This is an opportunity to get more information about the citation, garner a better understanding of the process, and even resolve disputed citations and penalties, thereby eliminating the need for the more formal procedures associated with litigation. It is noteworthy to understand that OSHA is not required to show any of the case file evidence during the informal conference. In fact, in Alaska, according to the Attorney General’s office, “no constitutional provision, federal statute, rule or regulation, or Alaska statute, rule, or regulation require OSHA to disclose the entire investigative file during an informal settlement conference. The Chief of Enforcement has the discretion to show an employer photographs during the informal conference if it will facilitate settlement.” This makes it more difficult to negotiate in good faith, considering the company may not be able to see all of the evidence (or lack of evidence) against it.

Another consideration to examine closely is that if the company accepts a settlement for a “serious violation” (or even an “other than serious violation”), that employer may be cited for a repeat violation if that employer has been cited previously for a substantially similar condition. There are no statutory limitations upon the length of time that a citation may serve as a basis for a repeat violation. Repeat violations penalties have increased to $156,259 as of January 15, 2023.

In Alaska, if the citation is contested, it is sent to the Occupational Safety and Health Review Board, which consists of three members appointed by the governor and confirmed by the legislature. The board then requests the chief administrative law judge to appoint an administrative law judge employed or retained by the Office of Administrative Hearings to preside at a hearing conducted under this section. This judge will preside over the contested citation throughout the process. It is only at this time that a full discovery of evidence will be allowed and the case file will be permitted to be reviewed.

CSHO Roadmap
OSHA compliance safety and health officers (CSHOs) follow a roadmap, and knowing it in advance can help the inspection go smoothly.

  • Before the visit, the CSHO reviews previous case files.
  • The CSHO will request a copy of the certification of hazard assessment, if applicable.
  • Inspections are made during regular working hours, except in special circumstances.
  • An employee representative must be given opportunity to participate in the inspection.
  • At an opening conference, the CSHO outlines the scope of the inspection, such as whether employees will be interviewed privately.
  • CSHOs determine whether the employer is subject to any voluntary compliance exemptions.
  • Any records requested during the inspection must be provided within four business hours.
  • The CSHO shall review the employer’s injury and illness records for three prior calendar years.
  • A walkaround inspection is meant to identify potential hazards.
  • Violations are brought to the attention of the employer and employee representatives at the time they are documented.
Sean Dewalt is a Senior Loss Control Consultant for Umialik Insurance Company in Anchorage. Dewalt has been working in safety and risk management in Alaska since 2000.