What Happens if OSHA Targets the Wrong Entity?

If you acquired an on-going business, you might be on OSHA’s SST “hit list” and don’t even know it. Moreover, OSHA will expect to inspect you based upon your predecessor’s data.

A former OSHA Compliance Officer shared two recent instances with me where OSHA came knocking on an employer’s door seeking entry for a Site-Specific Targeting (SST) inspection. OSHA tells the employer that they are being inspected based on injury and illness records from 2016. When the employer clarifies that the 2016 data — upon which OSHA is relying — is from some other employer who previously occupied that physical location, OSHA responds: “Too bad” and demands to inspect.

To me, this a clear violation of the new owner/employer’s 4^th Amendment rights. This is also one of the few instances in which I would advise the employer to deny entry and politely ask OSHA to seek a warrant.

One thing this alleged behavior tells me is that employers/owners in certain industries might need to be more prepared than usual — and know their rights and responsibilities — when OSHA comes to call. Here are a few basic things to consider and remember in the months ahead:

• Assemble your walk-around team — and develop your walk-around plan — long before OSHA knocks on the door. If you need help with this, let me know.
• OSHA must provide you, the employer/owner, with all of the reasons for the inspection, and where they want to go.
• You have the right to demand a warrant.
• You have the right to demand adequate time (an hour or so) to assemble your walk-around team. If you haven’t already, use this time to plan the walk-around to minimize “plain view” violations.
• All document requests must be in writing.
• If OSHA takes a picture, you should take the same picture.
• Avoid recorded (video or audio) interviews.

If you need help evaluating your business practices and systems for compliance and reporting purposes — or if you get a surprise visit from OSHA and receive a citation — please feel free to  contact me.

About the Author: James Laboe

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