OSH Law Primer Part XV: Imminent Danger Inspections

By the time this series is complete, the reader should be conversant in the subjects covered and have developed a deeper understanding of how the OSH Act and OSHA work. The series is not—nor can it be, of course—a comprehensive study of the OSH Act or OSHA capable of equipping the reader to address every issue that might arise.

The first article in this series provided a general overview of the OSH Act and OSHA; the second article examined OSHA’s rulemaking process; the third article reviewed an employer’s duty to comply with standards; the fourth article discussed the general duty clause; the fifth article addressed OSHA’s recordkeeping requirements; the sixth article covered employees’ and employers’ respective rights; the seventh article addressed whistleblower issues; the eighth article covered the intersection of employment law and safety issues, the ninth article discussed OSHA’s Hazard Communication Standard (HCS); the tenth article examined voluntary safety and health self-audits; the eleventh article, in two parts, reviewed OSHA’s citation process; the twelfth article covered OSHA inspections and investigations; the thirteenth reviewed OSHA’s ability to seek criminal penalties; and the fourteenth article examined judicial review under the OSH Act. In this fifteenth article in the series, we focus on imminent danger investigations.

The Occupational Safety and Health Administration (OSHA) is tasked with ensuring safe and healthful working conditions for employees across the United States. One of its most urgent enforcement tools is the imminent danger inspection, which is designed to identify and correct workplace hazards that could reasonably be expected to cause death or serious physical harm immediately or before the danger can be eliminated through standard enforcement procedures.

Quick Hits

• Section 13(a) of the OSH Act defines imminent danger as conditions or practices in a workplace that could reasonably be expected to cause death or serious physical harm immediately or before the danger can be eliminated through standard enforcement procedures.
• CSHOs are responsible for ensuring employer compliance with the OSH Act by conducting on-site inspections, interviewing employees, and reviewing safety records to identify workplace hazards.
• When an imminent danger complaint is received, OSHA assigns a CSHO to inspect the facility immediately, and if the hazard is not corrected, the administration may issue a citation, post a Notice of Imminent Danger, and seek a temporary restraining order from a federal court.

Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent danger” as “any conditions or practices in a workplace [where] a danger exists that could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through enforcement procedures” stipulated under the OSH Act. This definition sets a high threshold: not every hazardous condition qualifies as an imminent danger. The hazard must present a risk of death or serious physical harm that is likely to occur immediately or before the hazard can be abated through standard OSHA processes.

For a hazard to meet the criteria for imminent danger, OSHA requires that two specific conditions be satisfied:

1. Threat of Death or Serious Harm: The situation must involve a threat of death or serious physical harm to employees. “Serious physical harm” is interpreted as any injury or illness that could significantly impair the health or physical condition of an employee.
2. Immediacy of the Threat: It must be reasonably likely that a serious accident could occur immediately, or if not immediately, then before the hazard can be abated through normal enforcement procedures. In other words, the danger must be so urgent that waiting for the usual citation and abatement process would not be sufficient to protect employees.

OSHA defines a serious violation as one that 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. The OSHA compliance safety and health officer (CSHO) who is assigned to investigate engages in a multistep process to determine whether a hazard constitutes a “normal” serious workplace health or safety condition or an imminent danger:

Preliminary Assessment: OSHA evaluates the credibility and reliability of the complaint or report. This includes assessing the source, the nature of the alleged hazard, and any supporting evidence or documentation.

On-Site Inspection: Imminent danger inspections are unprogrammed and typically initiated in response to employee complaints, though CSHOs may also identify such hazards during routine inspections. These inspections are given top priority and are usually conducted immediately or within one day of receiving a complaint. OSHA may provide advance notice to employers in imminent danger situations to encourage prompt hazard correction.

Upon arrival, the CSHO presents credentials and conducts an opening conference to explain the inspection’s purpose and scope. Both employer and employee representatives are entitled to participate in the inspection. The walkaround phase focuses on the specific hazard but may be expanded if additional violations are observed. The CSHO is authorized to observe conditions, interview employees privately, take photographs, and collect samples.

Employers may deny entry to OSHA inspectors, in which case OSHA must obtain a search warrant. Employers cannot require CSHOs to sign waivers as a condition of entry. Employee representatives have the right to participate in the inspection, and employees may request private interviews or the presence of a representative during interviews.

During the inspection, the CSHO:

• interviews employees and supervisors to gather firsthand accounts of the conditions;
• observes the workplace, focusing on the specific area or operation identified in the complaint;
• reviews safety records, training materials, and safety policies relevant to the alleged hazard;
• takes photographs, videos, and instrument readings as necessary; and
• collects samples (such as air or material samples) and measures environmental factors (like noise or toxic exposures).

Application of the Imminent Danger Criteria: The CSHO applies the two-pronged test to determine if something is truly an imminent danger. The first prong is to determine whether there is a condition or practice that could reasonably be expected to cause death or serious physical harm. The second is to determine whether the identified harm could occur immediately or before the hazard can be eliminated through normal enforcement.

Professional Judgment: The CSHO uses professional judgment, guided by OSHA’s Field Operations Manual and relevant standards, to assess the likelihood and immediacy of harm. The CSHO may consult with technical experts or supervisors if the situation is complex or ambiguous.

While the inspection is generally limited to the specific hazard identified in the complaint, the CSHO may expand the inspection if additional violations or hazards are observed that could also meet the imminent danger criteria.

The CSHO documents all findings, including: the nature and location of the hazard; the number of employees exposed; the potential consequences if the hazard is not abated; and any actions taken by the employer to address the hazard. If the CSHO determines that an imminent danger exists, OSHA will request the employer to voluntarily and immediately abate the hazard or remove employees from exposure. If the employer fails to act, the CSHO will post a Notice of Imminent Danger and may seek a temporary restraining order (TRO) from federal court to compel abatement. If the CSHO concludes that no imminent danger exists, the inspection may still result in citations for other violations, but the urgent procedures for imminent danger are not triggered.

Regardless of voluntary abatement, OSHA will issue citations for violations, which must be posted at or near the site of the violation. Penalties vary based on the severity of the violation. Abatement periods are typically short, especially for imminent dangers, and employers are expected to correct hazards immediately or remove employees from exposure. If the employer contests the citation or abatement period, the process may involve settlement or litigation before the Occupational Safety and Health Review Commission.

Employees are protected from discrimination or retaliation for refusing to perform work they reasonably believe poses an imminent danger. If OSHA does not act on a reported imminent danger, employees or their representatives may seek a writ of mandamus to compel OSHA to pursue a TRO.

Imminent danger inspections are a critical OSHA enforcement mechanism aimed at preventing serious workplace injuries and fatalities by identifying and correcting hazards before they result in harm. OSHA has broad authority to inspect workplaces, issue citations, and seek court orders to ensure employee safety, while both employers and employees have defined rights and responsibilities throughout the process. Cooperation with OSHA and prompt hazard abatement are key to maintaining a safe work environment and avoiding legal and financial consequences.

Ogletree Deakins’ Workplace Safety and Health Practice Group will publish additional articles on the Workplace Safety and Health blog as an ongoing part of its OSH Law Primer Series. The next article in the series addresses OSHA-approved state plans.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts