Preparing for an OSHA InspectionOct 06, 2022
Are you prepared for an OSHA inspection? The chances of a surprise visit are greater than ever.
With an increased 2023 budget for the Occupational Safety and Health Administration (OSHA) — and the agency’s frequently stated commitment to invigorate enforcement efforts — employers in many business sectors would be wise to prepare for a visit in the months ahead.
Know your rights and make a plan
According to OSHA’s Field Operations Manual, employers have one hour from the Opening Conference to assemble their “walk-around team.” Nevertheless, OSHA Compliance Officers tend to get anxious long before the 60-minute mark. What if the employer doesn’t have a designated and trained safety officer or manager on site to handle an OSHA inspection? What if you do not have a “walk-around” team? You may have to rely on an experienced attorney to guide an employer/owner through the process.
The employer has the right to request a warrant. If OSHA can’t provide one, the employer has the right to refuse entry. Allowing entry without a warrant means the employer willingly agrees to the inspection – granted within the parameters agreed upon during the Opening Conference. In most instances, employers will not require a warrant – but it is imperative to be prepared in advance.
Demanding a warrant oftentimes results in a much more extensive and aggressive inspection. The employer will also lose its opportunity to set certain parameters.
How an employer responds initially sets the stage for everything that follows. Plan and choose this path wisely.
Why is OSHA at your facility?
OSHA conducts on-site inspections for one or more of the following reasons:
- A fatality or severe injury or illness
- An employee complaint
- A referral from other government agencies, local groups, or the media
- Programmed inspections targeting specific hazards — such as National Emphasis Programs (NEPs) or Local Emphasis Programs (LEPs)
- A follow-up inspection to see if a cited hazard has been addressed
The extension of the NEP for COVID-19, a new NEP concerning heat-related hazards — and several ongoing NEPs receiving renewed attention — provide solid clues for where OSHA intends to focus its enforcement efforts in the months ahead: lead exposure, trenching and excavation, and crystalline silica among others.
Whoever is in charge of this process at an employer’s facility or worksite should prepare for a long day.
When the OSHA Compliance Officer arrives, it is appropriate for the employer or employer’s representative — a safety officer, another manager, or an attorney — to ask the compliance officer for their credentials and the reason for the visit. It is also appropriate to ask for copies of the complaint or any other documentation related to the issue under investigation.
An OSHA inspection has three essential parts: the opening conference, the walk-around inspection, and the closing conference. The compliance officer should always be treated with courtesy and respect. It is equally essential for the employer — and employer’s representatives — to be cautious in all interactions throughout each step of the inspection process. Tell managers to provide direct, truthful answers to OSHA’s questions and refrain from volunteering information.
Throughout the day, the individuals accompanying the compliance officer should take photos and videos of anything photographed or videotaped by the compliance officer. It is also recommended that the employer record — or have a witness present for — any managerial-level exchanges with OSHA.
Employers have the right to have employer representatives present (including attorneys) during all managerial interviews. Do not permit a managerial interview to occur without someone else in the room taking copious notes.
For OSHA’s non-managerial employee interviews, however, typically neither the employer nor the employer’s representatives can be present. However, it is ultimately the employee’s decision – not OSHA’s.
Get your documentation together
Make sure all document requests from OSHA are in writing (e.g. via email). Also, certain documents have a 4-hour turnaround time for production – namely injury and illness records. I typically ask the Compliance Officer to waive the 4-hour rule and they will oftentimes oblige.
An employer should always be prepared to have the following documents available for production to OSHA:.
- Injury and Illness Summary Report (OSHA 300 logs) for the past five years.
- Individual Injury Reports for any employee injured over the past five years.
- A Hazard Communication Plan, documentation showing that employees have been trained, and material safety data sheets for all hazardous materials used or stored on site.
- Documentation related to OSHA’s visit (i.e., equipment inspection and maintenance logs, industry-specific training logs).
- Site Specific Safety Plans and related permit data (i.e., confined space, fall protection, heat protection).
And at the end of the day
During the closing conference, the employer should listen attentively to whatever the OSHA Compliance Officer says. Ask clarifying questions — but don’t become defensive or argumentative. It won’t help at this point. Save it for later.
The employer should inform the compliance officer that any straightforward, non-contentious safety violations will be addressed immediately. Avoid promising quick fixes for any violation that is unclear or requires a more complex response.
Avoid signing any statement attesting to anything — at the closing conference or otherwise — without careful review by an attorney.
Do you need an OSHA attorney?
From my 22 years of experience as an OSHA attorney — involved in cases at the local, regional, and national level — I know that few employers, safety officers, and managers fully comprehend all that an OSHA inspection entails, the rules that all parties must follow, and the impacts that citations can have on a company’s bottom line.
An OSHA attorney can help employers fully understand their position after receiving a citation and equip them for negotiation.
Another critical role an OSHA attorney plays throughout the process is administrative. Throughout the inspection process — and in the days immediately following an inspection — OSHA officials often have numerous questions that require accurate and timely answers. There is significant legal wisdom in having all official communications concerning an inspection — and possible violations — flow through one primary hub.
An OSHA attorney can also set boundaries that might be more difficult for an employer to establish. In my experience, it’s often easier for me to say “no” to something, where my client would be more prone to equivocation.
Deciding to contest
Always request an Informal Conference – you will learn something new or different about the case and you will lay the groundwork for resolution. An experienced attorney can help you navigate the post-citation landscape and decide whether filing a Notice of Contest makes sense.
Don’t delay. An employer only has 15 working days — starting from the day a citation is received — to inform OSHA about the decision to contest a citation (or citations).
We’re here to help
If you’re interested in exploring your preparedness for an OSHA inspection or have received a citation and need guidance, don’t hesitate to contact Orr & Reno for assistance.
About the Author: James Laboe