Inform Your Team About OSHA’s New Federal Inspection Plan

By now, most affected employers know that the Occupational Safety and Health Administration (OSHA) released its new federal Site-Specific Targeting (SST) inspection plan guidance, effective December 2020. This plan was created for non-construction industry workplaces that have 20+ workers. Based on information submitted by employers via their Form 300As, Summary of Work-Related Injuries and Illnesses, the program is designed to help OSHA “achieve the goal of ensuring that employers provide safe and healthful workplaces by directing enforcement resources to those workplaces with the highest rates of injuries and illnesses.”

The new guidance lists two significant changes: 

1. The addition of a new inspection category utilizing a “three-year data range,” and;
2. A new option to perform “records-only” inspections.

This article will help workers and employers better understand what OSHA’s new SST inspection plan means for them specifically. Keep in mind, as mentioned in Section VII(B), OSHA’s instruction relates to its federal program but notes that states with OSHA-approved State Plans are “required to have their own inspection targeting systems.” State Plans must incorporate policies and procedures that are “at least as effective” as federal ones. Within 60 days of OSHA’s SST publication issuance, states were required to submit a notice explaining how their State Plan will adopt or differentiate from federal guidelines. 

Federal Site-Specific Targeting Inspections

Employers are required to use Form 300As by Title 29 of the Code of Federal Regulations (29 CFR § 1904.41), with certain caveats listed for those with “20 or more employees but fewer than 250 employees in designated industries,” and slightly different requirements for “establishments with 250 or more employees.” 

The Role of DART Rates

What are OSHA inspectors looking for when they review these Form 300As? Among other things, they’re screening for rates of DART — “Days Away, Restricted or Transferred” — that potential warrant concern. Elevated DART rates can land a business on an SST inspection list. So can failure to report injuries or illnesses, or, in some cases, low rates of reportage. OSHA’s Form 300/300A instructions list guidance for employers to calculate injury and illness incidence rates. 

How OSHA Generates Inspection Lists

OSHA SSTs apply industry criteria to data collected from employer-submitted Form 300As. They compare establishments’ rates across a three-year range, screening for sites “most likely to be experiencing elevated rates and increased numbers of occupational injuries and illnesses.” 

Based on the results, OSHA identifies and makes a list of organizations it wants to take a closer look at. It categorizes establishment criteria as High-Rate, Upward Trending, Low-Rate, or Non-Responders. So, for example, if an organization’s self-reported data indicated a higher-than-average DART in 2017, and those numbers continued to rise in 2018 and 2019, that employer could likely end up on a list. However, simply landing on a list doesn’t mean an employer will be inspected. 

OSHA Area Officers use SST web-based software programs to randomly choose their inspection targets for a given calendar year cycle. The number selected is based on the geographic area to be covered and available resources at the time, but at least five and up to 50 sites are picked (though this number may be affected by outlying carryover inspections not completed the prior year, which take priority). 

Their list features a 50/50 mix of manufacturing and non-manufacturing organizations, with each having its own DART Rate criteria since rates vary between industries. A sampling of Low-Rate establishments will be randomly inspected based on its CY2019 figures. Non-Responders are also randomly inspected “to discourage employers from not complying with their obligation…in an attempt to avoid inspection.” 

Normal and “Records Only” Inspections

OSHA Inspections are used to search for possible violations and, when necessary, find evidence to support the issuance of citations. For most inspections, OSHA staff pay comprehensive physical visits to workplaces. As noted in Section XIII(E), Compliance Safety and Health Officers (CSHO) “will review the OSHA 300 logs, 300A summaries, and 301 incident reports for five prior calendar years, which will include CY 2017, 2018, and 2019.”

If a CSHO decides that an organization made the list simply because of “incorrect data submitted,” then under the new SST guidelines, an inspection may be “records only.” That said, even a “records only” inspection requires a partial walkthrough of the applicable workplace as well as employee interviews. 

National Emphasis Programs 

OSHA may be more prone to issue citations or more severe penalties in situations where an inspection was prompted by a specific injury or serious employee complaint. A workplace with especially high rates may be inspected under OSHA’s National Emphasis Program directives, which are “temporary programs that focus OSHA’s resources on particular hazards and high-hazard industries.” Among these programs is new guidance for handling COVID-19, so employers may want to be mindful that only required workplace-related injuries or illnesses are reported on 2020-2022 logs. 

Other Emphasis Programs

Aside from National Emphasis Programs, OSHA maintains additional emphasis programs based on regional or local concerns as well as specific hazards (for example, lead) or industries (such as petroleum refineries). Both an SST inspection and a special emphasis inspection may occur simultaneously. 

Deferral and Deletion

In some cases, a programmed inspection can be deferred, such as when an establishment is “an approved participant in the Pre-Safety and Health Achievement Recognition Program (SHARP) or if there is an active “in progress” On-Site Consultation happening. 

Inspections may occasionally be deleted entirely if the business is closed, in the public sector, is an approved participant in a SHARP or Voluntary Protection Program, or if it “received a comprehensive safety or health inspection within 36 months of the creation of the current inspection cycle.” 

Appeals

Employers do have an opportunity to appeal a citation through an informal conference with a local director. As noted on its inspection handout, “OSHA’s primary goal is correcting hazards and maintaining compliance rather than issuing citations or collecting penalties.” 

SST References

• Occupational Safety and Health Act of 1970, 29 U.S.C. 651

• 29 CFR Part § 1904, Recording and Reporting Occupational Injuries and Illnesses

• 29 CFR Part § 1908, Consultation Agreements
  
• Revisions to the Voluntary Protection Programs to Provide Safe and Healthful Working Conditions, Federal Register, January 9, 2009 (74 FR 927)

OSHA Directives

• ADM 03-01-005, OSHA Compliance Records, August 3, 1998

• CPL 02-00-025, Scheduling System for Programmed Inspections, January 4, 1995

• CPL 02-00-051, Enforcement and Limitations under the Appropriations Act, May 28, 1998

• CPL 02-00-164, Field Operations Manual (FOM), April 14, 2020

• CPL 02-00-149, Severe Violator Enforcement Program (SVEP), June 18, 2010

• CSP 01-00-005, State Plan Policies and Procedures Manual, May 6, 2020

• CSP 02-00-003, Consultation Policies and Procedures Manual, November 19, 2015

• CSP 03-01-003, Voluntary Protection Programs (VPP): Policies and Procedures Manual, April 18, 2008

• Interim Enforcement Procedures for Failure to Submit Electronic Illness and Injury Records under 29 CFR § 1904.41(a)(1) and (a)(2), February 21, 2018

The new SST cancels 19-01 (CPL-02), SST-16, October 16, 2019.