The fact that the Occupational Safety and Health Administration (OSHA) cannot inspect every U.S. workplace is little consolation when the agency decides to inspect yours. We take you inside an OSHA inspection and provide tips to help your organization prepare for a successful outcome.
Although much about OSHA inspections has remained the same for decades, there are new developments:
- In the southeastern U.S., at least, there are newly defined limits to what qualifies as “probable cause” to justify OSHA inspection warrants.
- Agency investigators now may bring unmanned aircraft, or drones, to workplace inspections.
Legal advice from corporate or outside counsel who are knowledgeable in labor law and OSHA regulation can be invaluable. Words and actions during an OSHA inspection can have consequences, and dealing with OSHA personnel often requires making difficult decisions:
- Should you voluntarily consent to an OSHA inspection or demand the agency obtain an administrative inspection warrant?
- How much should you limit the scope of an OSHA inspection?
- Do you allow an OSHA inspection team to fly a drone at your worksite?
Every workplace is unique, as is each inspector. Refusing to consent to a voluntary inspection may lead the Compliance Safety and Health Officer to seek a warrant for a broader workplace inspection. Insisting on too many limits to the scope of an inspection can raise suspicions about potential violations.
The best time to think about and plan for an inspection is before one happens. Designate a safety director or other manager to act as the company’s representative during an OSHA inspection. In some companies, a Human Resources manager may be responsible for all labor, safety, and health compliance. Businesses should consider having a backup for the company representative to fill in for the primary representative during a vacation or other absence.
The best preparation for an OSHA inspection is having a robust safety and health management program in place. A safety audit can uncover previously unrecognized hazards, as can an OSHA consultation visit. OSHA safety consultants are not enforcement personnel and cannot cite employers for hazards discovered during a consultation visit.
OSHA has a hierarchy of priorities it uses to allocate its inspection and enforcement resources. The agency’s inspection priorities are:
- Imminent danger;
- Severe injuries and illnesses;
- Worker complaints;
- Referrals from other federal, state or local agencies, individuals, organizations or the media;
- Targeted inspections (e.g., National, Regional, and Local Emphasis Programs); and
- Follow-up inspections to verify abatement of hazards.
Programmed inspections include those for Local, National, Regional, and Special Emphasis Programs to address compliance in hazardous industries or specific workplace hazards.
OSHA may seek an administrative inspection warrant to initiate an inspection, usually if an employer refuses to consent to a voluntary inspection. The agency must show probable cause to justify a warrant. The standards for administrative probable cause are not as stringent as those for probable cause in criminal law enforcement, but there are limits.
Recently, the U.S. Court of Appeals for the 11th Circuit (Alabama, Florida, and Georgia) decided OSHA erred when it sought an inspection warrant based on injuries recorded in an employer’s injury and illness logs. The court decided that evidence of hazards is not evidence of violations.
Other appeals courts or the Occupational Safety and Health Review Commission may consider the 11th Circuit ruling if questions about justification for OSHA inspection warrants arise elsewhere.
Phone, On-Site Investigations
Not all OSHA investigations are conducted on-site. When the agency receives a complaint about low-priority hazards, if the complainant agrees, it may choose to conduct an investigation using telephone and fax.
OSHA personnel would telephone the employer to describe the agency’s safety and health concerns and follow up the call with a fax detailing the alleged safety and health hazards. The employer has 5 working days to respond to the allegations, identifying any issues found and describing any corrective actions taken or planned.
Higher-priority hazards will likely result in an on-site inspection. With a few exceptions, OSHA enforcement personnel are not allowed to notify employers in advance of on-site inspections.
The exceptions are:
- In cases of imminent danger if advance notice would enable the employer to correct the danger as soon as possible;
- When an inspection requires special preparations or can most effectively be conducted outside of regular business hours;
- To ensure all employee and employer representatives or other necessary personnel will be present to aid in the inspection; and
- Advance notice would increase the likelihood of an effective and thorough inspection—for example, in complex fatality investigations.
Opening Conference Negotiations
An on-site investigation begins with an opening conference. OSHA enforcement personnel are instructed to keep opening conferences brief and proceed as soon as practical to the walkaround.
The CSHO should present proper credentials: an agency photo identification—there is no badge. The inspector also should inform all affected employees, employers, and their representatives of the purpose of the inspection. If the inspection is in response to a complaint, the CSHO should provide a copy of the complaint.
The opening conference offers an employer’s representative the chance to set the scope and tone of the workplace inspection.
If the agency initiates an inspection in response to an accident (that resulted in a fatality or hospitalization), complaint, or referral, the CSHO may be planning a partial inspection to address a specific hazard or potential violation.
The company representative may ask the inspector to limit the walkaround to the places or processes related to the specific hazard or possible violation.
Walkarounds, Plain-View Violations
The employer’s representative should accompany the CSHO during the workplace walkaround. A labor union representative may also participate in the walkaround if the employees are part of a collective bargaining agreement.
The company’s representative should take the same photographs or record the same video that the inspector does. This will enable company officials to see what the inspector sees.
Any safety and health violations in “plain view” during the walkaround may lead the inspector to insist on expanding the scope of the inspection.
What a Drone Sees
Eliminating plain-view violations has become more critical with the agency’s recent adoption of drone use during inspections.
CSHOs now are authorized to use unmanned aircraft systems (UASs) during workplace inspections. However, agency investigators may only use drones with an employer’s consent and must follow strict agency policy and procedures for their use.
Employers must carefully weigh the decision to grant or withhold consent to drone use during inspections.
The agency “flight team” during an inspection would include a licensed drone operator, visual observer, and safety monitor. A company representative should observe all drone operations.
Employee, Supervisor Interviews
Company officials may prepare employees for OSHA interviews if they believe an inspection is likely or debrief them after interviews but may not be present during the inspector’s interviews with employees.
Management representatives can and should be present for supervisor interviews. Information provided during supervisor interviews may be binding for the company.
Logs, Other Documents
Employers must provide inspectors with their injury and illness logs (OSHA Form 300) and safety data sheets.
The CSHO may request copies of other documents. Employers should ask OSHA personnel to submit additional document requests in writing. Any trade secret information should be clearly identified so OSHA personnel can mark it “Confidential.”
After the walkaround and any document review or interviews, the CSHO will meet jointly or separately with employee and employer representatives. During the closing conference, the inspector will:
- Provide employer representatives with copies of an agency publication, “Employer Rights And Responsibilities Following a Federal OSHA Inspection”;
- Discuss any apparent violations and any pertinent information discovered during the inspection;
- Cover the strengths and weaknesses of the employer’s safety and health program; and
- Advise all representatives of their rights to participate in subsequent conferences, meetings, or contest proceedings.
OSHA must issue citations and proposed penalties within 6 months of violations. The agency has criteria enforcement officials must meet for citing violations that include:
- Applicable standards or sections of the OSH Act,
- Employee exposure; and
- Determining employer/employee responsibilities.
The agency must establish the potential for death, injury, or illness to cite employers for serious violations, and it must have evidence of an employer’s knowledge of hazardous conditions for willful violations.
Contests, Informal Conferences
An employer has 15 days to contest OSHA citations by filing a case with the review commission.
Any affected employer, employee, or representatives may request an informal conference with agency officials to discuss any issues related to the inspection, citations, proposed penalties, or a notice of intent to contest. The informal conference must be held during the 15-day contest period but does not stay the contest deadline.
During an informal conference, agency officials will not discuss the merits of the employer’s defense or whether the case is being referred to the Department of Justice for criminal prosecution. However, OSHA personnel will cover:
- The purpose of the conference,
- Rights of all participants,
- Contest rights and time constraints, and
- The potential for settlement of any of the citations.
Avoiding Inspections Altogether
Some inspections are unavoidable, especially programmed inspections conducted as part of the agency’s emphasis programs. Accidents can happen, and a workplace fatality or worker hospitalization pretty much ensures the agency will want to conduct an inspection.
However, there are steps you can take to reduce the chances of accidents, complaints, or referrals:
- Conduct workplace safety audits, or request OSHA consultation services to identify and correct any unrecognized hazards;
- Consider creating an employee/management safety committee to engage workers in eliminating or controlling workplace hazards; and
- Watch for employees taking shortcuts on the job, and enforce all company safety policies or rules.