5 steps to take after failing an OSHA inspection

Getting pulled over by the police. An IRS audit. An OSHA inspection.

None of these interactions with authority figures is a welcome event. At best, it can waste some of your precious time. At worst, it can cost you some money - maybe even a lot of money.

For the dental practice, failing an OSHA inspection, while serious, isn’t the end of the world. How one responds to that failure can be an opportunity to address important safety issues, and it may be an opportunity to learn something in the process.

Don't panic

An inspection can be upsetting, but it’s also a call to action. It’s important to not panic or to go into denial about possible deficiencies, advises Peggy Spitzer, a dental hygienist and clinical education manager for Certol International.

“Try not to panic,” she says. “Try to understand why you got the complaint and just see what actually may have happened to trigger this complaint. They are sometimes frivolous, but most of the time there is some truth; there’s some real problem. This might be a little too much to expect of someone who’s angry and frightened and isn’t going to think about it as the call to action that it really is."

While the initial reaction to an inspection failure is likely an element of panic and dread, there’s an opportunity to realize something positive, assuming the right mindset is present.

“Maybe the practice owner can’t hear that right away,” Spitzer says. “But maybe somebody on the staff with formal training could help the practice owner with proactive and positive input. What would be proactive at that point? It’s a bit more of a positive way to move forward than just, ‘I’m fighting this violation.’ If I were the business owner, I’d probably react very negatively to them coming into my business and telling me, ‘You can’t do things this way.’ But, there really is some sunlight here. If you can get someone to listen and say, ‘Hey, maybe there are some things that we can be doing to improve the practice.’”

Understand the violations

Understanding the violations and taking the appropriate corrective actions are, obviously, necessary steps.

“The first step is for the employer to assess the alleged hazard and take actions within the time frame indicated by OSHA to correct them, if they are legitimate,” says Mary Borg-Bartlett, president of SafeLink Consulting. “Most of the inspections of dental practices are a result of a complaint filed by a disgruntled employee or former employee and may or may not be a hazard. If the OSHA inspection resulted in a citation, or even penalties, then the practice must abate (correct) the issues and report those corrections to OSHA within a certain period of time.”The practice should learn from the inspection and not make the same mistakes again.

“After the hazards are corrected, then it’s critical that the practice ensures that those issues remain corrected and don’t occur again,” Borg-Bartlett says. “OSHA does not reinspect in every instance but conducts random inspections as follow-up to verify that the employer actually abated the hazard. If it is found that the employer did not abate the hazard - and/or abated it but has allowed the hazard to reoccur - then serious penalties can be levied on the employer.”

Underscoring the gravity of violations is just how much penalties can cost. OSHA’s adjusted civil penalties proposed after Jan. 2, 2018 are as follows:

• 1903.15(d)(1
• Willful violation: The penalty per willful violation under section 17(a) of the Act, 29 U.S.C. 666(a), shall not be less than $9,239 and shall not exceed $129,336.
• 1903.15(d)(2)
• Repeated violation: The penalty per repeated violation under section 17(a) of the Act, 29 U.S.C. 666(a), shall not exceed $129,336.
• 1903.15(d)(3)
• Serious violation: The penalty for a serious violation under section 17(b) of the Act, 29 U.S.C. 666(b), shall not exceed $12,934.
• 1903.15(d)(4)
• Other-than-serious violation: The penalty for an other-than-serious violation under section 17(c) of the Act, 29 U.S.C. 666(c), shall not exceed $12,934.
• 1903.15(d)(5)
• Failure to correct violation: The penalty for a failure to correct a violation under section 17(d) of the Act, 29 U.S.C. 666(d), shall not exceed $12,934 per day.
• 1903.15(d)(6)
• Posting requirement violation: The penalty for a posting requirement violation under section 17(i) of the Act, 29 U.S.C. 666(i), shall not exceed $12,934.  

Manage employee relations

Many complaints are generated by current or recently fired, disgruntled employees. The problem, Spitzer observes, is that there’s often a real deficiency that gives substance to the complaint.

“An unhappy employee may still have some legitimate points to make about safety and good practices,” Spitzer says. “It depends on the sophistication of the employee, but it’s usually not such a mystery. It’s pretty well known. The employees are going to know how to get ahold of OSHA.”

Even if the source of the complaint is obvious and well known around the office, it’s imperative that the practice not do anything that could be misconstrued as retribution, which could result in a whole new can of disciplinary worms being opened.

“OSHA doesn't tolerate retaliation against a current employee for filing a complaint against their employer,” Borg-Bartlett says. “Adverse reaction to the complaint in the presence of employees and discussing who the practice owner thinks filed the complaint should be avoided at all costs. If the employee is terminated for any reason in the future, they could believe that the employer is taking an adverse action against them and contact OSHA with a retaliation suit. OSHA has hired a staff of attorneys in the past several years to just handle retaliation claims. Our attorney has told us to have our clients avoid stating anyone's names or titles after receiving a complaint, as that could be discovered if a retaliation is filed later.”

But what that disgruntled employee contacts OSHA for may not be what the resultant fine is for. Merely contacting OSHA with one complaint opens the door for, potentially, something else.

“If they’re really ticked and they’re going to try to figure out some way to get back at their employer, I’m sorry to say, more often than not, if there actually is something wrong, the employee may not really understand how to phrase the complaint or which agency to contact,” says Spitzer, who also serves as a consultant on the Colorado State Dental Board. “They may not even identify the worst thing that’s going on there. This has happened many times since I’ve been involved with the state board here in Colorado. The original complaint may be something trivial, but once the door is open to inspection, then you find all kinds of things."

Know your accuser

The practice owner should understand which agency is actually issuing the citation, Spitzer says. An OSHA inspection could be driven by a complaint to the regional OSHA office, the state dental board or state health department. Each agency has a slightly different agenda and different enforcement powers. For example, OSHA can issue fines, but the state health department can issue an immediate closure notice.

“When the complaint is presented, make sure that the practice owner really understands where this is coming from,” she says. “Is it coming from the state board? Is it coming from OSHA? Because they really do have different agendas. OSHA’s focus is the employees. The state dental board or state health department protects the public safety. This is very much like an IRS audit. You’re going to get whacked with a hammer, but let’s try to find out, real quick, how we can put some padding on so don’t get whacked too hard. Catch your breath, try to get cooler heads together and say, ‘What part of this is real? Where is it coming from? What are they really telling us?’”

What brings authorities to the practice could start as an employee complaint, but it could also be instigated by a patient complaint. From there, it can grow to be something even larger.

“A patient could see something, and they’re the public,” Spitzer says. “Sometimes their complaint is really related to a bill, but they’ve seen something in the office that looks weird. The waiting room doesn’t look clean or the bathrooms are dirty. Now the doors are open.”

Patient complaints usually go directly to the state dental board. The complaint may ultimately involve some OSHA (employee-related) issues, but it’s the state dental board that will investigate.

Depending on who’s inspecting the practice, different sorts of penalties can be levied.

“Each agency will have different priorities and different enforcement powers. If there are severe deficiencies and immediate threat of harm to the public, then the state health department can actually shut the office down completely, and with no notice, and just say, ‘You’re done. You’re closed, period,’” Spitzer says. “’While we’re doing our investigation, you’re closed. You can’t see patients.’”

Don't let it happen again

The idiom, “Fool me once, shame on you; fool me twice, shame on me,” is particularly appropriate in such instances - that is, while the practice might be penalized for a deficiency, it should serve as fair notice not to let it happen again.

To help ameliorate future problems, the practice should take whatever measures within its power to stay on top of safety issues.

“The practice owner, and at least one to two employees, should immediately download and read the following: the OSHA Bloodborne Pathogens Standard, the OSHA Hazard Communication Standard, the CDC Guidelines for Dental infection control (2003), and the 2016 CDC Summary of Infection Prevention Practices in Dental Settings, which are available for free online,” Spitzer says.

“Make a list of action items,” she continues. “If the practice does not already have an office infection control coordinator, the practice owner should identify a willing employee (not the dentist practice owner) to be the office infection control coordinator. This person should have some type of formal training in their background and have release time of at least two hours per week to devote to infection control. This person should then help collect documents, office policies, etc. to respond to the inspection.”

If the practice is inspected, it might seem that OSHA, or whatever agency, wants to be constructive in its criticism, helping the practice to improve. However, Spitzer observes that is not their job.

“The people who come to inspect are there to investigate,” she says. “That is, they’re not there as consultants, they’re not there as educators. Their whole mission, as an agency, is showing up at the door and protecting the health and safety of the public. They are not there to protect the health and safety of the practice owner’s wallet.”

Whatever the details of a failed OSHA inspection - whether it’s instigated by a disgruntled employee or a patient and whether it results in a warning or a fine - the important thing is to correct the deficiencies, learn for the future and move on.