Is An OSHA Inspection In Your Future?

Be prepared for an OSHA inspection. OSHA has multiple reasons to come calling these days. Are you ready if they do?

Probable cause

When inspectors from the Occupational Safety and Health Administration (OSHA) visit any workplace, they always have a reason. Whether responding to a complaint, a referral from another agency, an injury — or perhaps just observing a hazard during a “drive-by” of a worksite — OSHA has the legal authority to inspect most workplaces with employees.

Employers and employees also have rights, and knowing these rights can make a big difference in the outcome of an OSHA inspection.

• The OSHA Inspector has a right to enter without unreasonable delay.
• Employers have the right to require a warrant
• The OSHA Inspector is subject to all established visitor entry procedures
• Employers have the right to notify management and legal counsel immediately about the pending inspection

 What prompts a visit?

Several different kinds of events, circumstances, or actions can trigger an OSHA Inspection.

• Imminent Dangers: OSHA’s top inspection priority is when they believe there is a reasonable certainty that a danger exists and that this danger could result in serious physical harm or death.
• Severe Illness/Injury: OSHA requires employers to report workplace fatalities, in-patient hospitalizations, amputations, and other serious injuries. When employers file the required Injury & Illness Recordkeeping Form (Form 300, 300A, and 301), this action sometimes prompts a visit. OSHA investigates all fatalities, but investigation does not always mean an on-site inspection. Each regional office prioritizes on-site inspection targets based on several factors, including the severity of the injury, age of injured employee(s), the number injured, and OSHA’s history with the employer.
• Complaints: OSHA has made it easy for employees and others (e.g. unions) to report alleged safety violations and file complaints. Complaints are evaluated by OSHA and prioritized for a response.
• Referrals: OSHA may decide to inspect a facility or worksite because another government agency, a private organization or entity, or the media has expressed concern.

OSHA also has ongoing National Emphasis Programs (NEPs), Local Emphasis Programs, and a Site-Specific Targeting Program that regional OSHA offices use to prioritize their inspection targets. These programmed inspections are aimed at high-hazard industries, workplaces, and occupations, as well as specific safety and health hazards.

Employers should speak with legal counsel before submitting any documentation to OSHA— whether this request happens during the on-site visit or in a letter. Including legal counsel at the earliest stages of an OSHA investigation or inspection could significantly impact future litigation if litigation becomes necessary.

Inspections are increasing

While the rate of on-site inspections plummeted in 2020, they have bounced back significantly in 2021. According to a report from Bloomberg law, OSHA conducted 2,452 inspections in June 2021, which is up 47 percent from June 2020, but trailing the 2,915 inspections logged for June 2019. Construction remained high, accounting for more than half of the agency’s site checks for June 2021. Also, the 92 healthcare inspections logged in June 2021 is a 163 percent jump from June 2019.

The same report showed that inspections exceeded pre-pandemic levels in specific business sectors where employee complaints were also high. Inspections for wholesalers, retail establishments, warehouses, and transportation are exceeding 2019 and 2020 levels significantly.

Taking positive control

Employers can take positive control of an OSHA inspection by anticipating the basic information OSHA will be requesting, identifying the inspection route, and articulating any relevant visitor procedures — including confidential information or trade secrets that may be revealed during the inspection.

During the actual walk-around inspection, the employer should accompany the inspector at all times. The employer needs to note and replicate any photographs, video, measurements, and samples taken by the inspector. Remember to follow the inspection route. OSHA can expand the scope of the inspection if there is a violation “in plain sight.”

Document requests often include OSHA injury and illness logs, documentation of employer-based safety programs, training records, and any accident investigation reports. It is helpful for employers to get all document requests in writing and seek legal review before submittal.

 Be professional

The moment that OSHA knocks on your door, they are looking to build a case against you. Nevertheless, set a professional and cooperative tone early – it will only inure to your benefit. View the inspection as an opportunity to:

• Showcase your safety programs. You believe that you are doing the right things and are prepared to disclose, document, and discuss what you are doing to keep your employees safe.
• Learn how to improve. No one is perfect. Use the inspection process as a learning opportunity. Engage proactively with the inspector. Adopt the attitude that you and OSHA have shared goals..

It’s essential that you immediately rectify any safety hazards noted during an inspection, but do not admit that something is a “violation.” That calls for a legal opinion. There will be a follow-up visit in some cases, and it won’t look good if a noted hazard hasn’t been addressed.

In the meantime

If you have any questions or concerns about your readiness for an OSHA inspection — or have received a citation — don’t hesitate to contact Orr & Reno for assistance.

About the Author: James Laboe

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