If OSHA knocked on your door, how would you respond? Would you throw open the doors to your facility and give the inspector free reign, or would you demand that the inspector obtain a warrant before entering? That decision—and the many others that take place throughout the course of an OSHA inspection—can have a major impact on the final outcome, so it’s critical for organizations to have a plan in place before OSHA arrives.
That was the subject of a presentation at Safety 2019, the annual conference of the American Society of Safety Professionals, taking place from June 9–12 at the Ernest N. Morial Convention Center in New Orleans. Barry Spurlock, Esq., CSP, and Todd B. Logsdon, Esq., delivered a session titled “Confidently Exercising Employer Rights in an OSHA Inspection.”
Employers and employees both have rights during an OSHA inspection, but a successful inspection outcome is the result of a strategic balancing act between asserting your rights, fulfilling your responsibilities, and responding in a professional and respectful manner, Spurlock and Logsdon emphasized. Just as a completely hands-off approach to an inspection can result in more costly citations and fines, an overly adversarial posture can also backfire, so it’s wise to choose your battles.
Spurlock and Logsdon highlighted some key points for employers to remember throughout the course of an inspection:
- It’s your facility, and you have rights. An OSHA inspection must be conducted in a reasonable manner and during a reasonable time. Generally speaking, with the exception of imminent danger situations, OSHA can’t unreasonably disrupt your business operations.
- Be cooperative and responsive when dealing with the compliance officer, but maintain control of the inspection.
- OSHA must complete the inspection process, including issuing citations, within 6 months.
Before an inspection takes place, it’s important to have a plan in place. Spurlock and Logdon recommended that employers consider developing a written plan for handling an OSHA inspection. A plan should answer the following questions:
- What OSHA standards apply to your facility and operations? Is your organization in compliance? If not, fix any compliance issues proactively.
- Have there been any previous OSHA inspections or citations at your facility or in your organization? If so, were any violations corrected? Failing to correct previously identified violations can set you up for a costly repeat citation.
- Are the support staff at your establishment—receptionists, secretaries, security guards, and any others you may have—trained on how to react when OSHA arrives?
- What will the company say when OSHA arrives at the facility?
- Who is the right company person to contact upon OSHA’s arrival? Often, an employer will want its safety professional or legal counsel to be present during an inspection.
During the Inspection
An OSHA inspection consists of four primary elements: the knock on the door, the opening conference, the walkaround inspection, and the closing conference. Spurlock and Logsdon offered tips for navigating each step.
Knock on the door. When OSHA appears at your facility to conduct an inspection, typically you will not have received advance notice. In some cases, such as after a fatality or serious injury, an employer may be anticipating a visit from OSHA, but the specific timing of the inspection will still be unknown before it occurs.
Employers should request and review the compliance officer’s credentials before allowing the inspection to proceed; ensure that the individual is actually an OSHA compliance officer. Then, alert the designated facility contact person. This will usually be either the highest ranking official on site or the safety director or manager.
A key question that employers must decide is whether to require OSHA to obtain an administrative search warrant before entering the facility. In most cases, Spurlock and Logsdon don’t recommend this strategy, as it can set an adversarial tone that carries throughout the rest of the investigation process. However, there are some specific scenarios where it may be advantageous to require a warrant. One such scenario is when OSHA wants to expand an inspection that was originally limited in scope to a more comprehensive investigation. In that situation, asking for a warrant may prevent or limit the expansion.
Opening conference. Immediately after the inspector is permitted access to the facility, the opening conference will begin. The compliance officer will explain the nature and scope of the inspection. In general, programmed inspections—that is, inspections that are conducted under an emphasis program or the Site-Specific Targeting Program—will be comprehensive, or wall-to-wall, in scope. Other types of inspections, including those resulting from complaints, referrals, reported injuries, or fatalities, are more likely to be limited to a specific issue or part of an operation.
At the opening conference, OSHA will likely ask to review written safety and health programs, injury and illness records (OSHA 300 logs, 300A summaries, and 301 incident reports), and training records. Injury and illness records must be provided to the agency within 4 hours of the request. However, for other record requests, it is prudent to be strategic in what you provide to OSHA. Some written programs, such as an employer’s hazard communication plan, are required by the relevant regulation to be presented to OSHA if requested, but there are many types of documents that do not fall into this category. Advice from legal counsel can help to determine the optimal strategy for these requests. OSHA can obtain a subpoena for records an employer refuses to provide, but the agency may back away from requests that are out of the scope of the inspection if required to take that extra step. Keep a copy of all documents you provide to OSHA.
Spurlock and Logsdon emphasized the importance of setting and adhering to some basic ground rules during the inspection:
- Be truthful, but don’t volunteer information unnecessarily.
- Treat the inspector in a professional manner.
- Notify corporate officials and counsel of the inspection.
- Coordinate with on-site contractors and vendors. Every employer that is present on-site has a right to participate in the walkaround inspection.
Walkaround. The walkaround is the heart of the inspection; its purpose is to observe the workplace for possible violations. A walkaround may be completed within a few hours, or it may be drawn out over several months, depending on the type of inspection.
Employers should always require an OSHA inspector to follow all safety procedures that its own employees follow during the walkaround, including wearing personal protective equipment (PPE). Inspectors will often take photos and samples or perform monitoring during an inspection. The employer should always perform the same actions side-by-side with the inspector in order to have its own record of what OSHA focused on during the inspection.
The employer has the right to accompany the compliance officer during the walkaround; however, an employer that attempts to interfere too much with the inspection process can lose this right. Actions that might be considered interference include concealing violations, intimidating employees, or obstructing the inspector’s legitimate inspection activities.
Often, OSHA will seek to interview employees. Employees have the right to speak with an OSHA inspector privately; however, they can decline. If an OSHA inspector wants to speak to a particular employee who declines to be interviewed, the agency can obtain a subpoena.
However, supervisors and managers are considered agents of the company, and their knowledge is imputed to the organization as a whole. Therefore, if OSHA seeks to interview a supervisor or manager, the employer has the right to be present during the interview and to have its legal counsel present.
Closing conference. The closing conference is a meeting with the OSHA inspector, the employer, and a designated employee representative. The inspector discusses the findings of the inspection and the possible courses of action available to the employer, which could include an informal conference with OSHA or contesting citations and proposed penalties. Spurlock and Logsdon emphasized that the closing conference is a time to obtain information, not a time to debate OSHA. Employers can point out any hazards that were identified during the inspection that have already abated, which can gain some goodwill from the agency and possibly reduce the severity of any issued violations.
After the Inspection
If an inspection results in citations, they must be issued in writing and signed by the appropriate area director. A citation must be issued within 6 months of the violation’s occurrence, unless the citation is for a continuing violation. Citations describe the OSHA standards that were allegedly violated, list proposed penalties, and give a deadline for abating the associated hazards. An employer must post citations in the facility for employees to view for 3 days or until the hazards have been abated, whichever is longer.
Current maximum civil penalty levels for OSHA violations are:
- Willful violations: Minimum of $9,472 up to $132,598
- Repeat violations: Up to $132,598
- Serious violations: Up to $13,260
- Failure to abate: Up to $13,260 per violation per day
- Other-than-serious violations: Up to $13,260
If an employer wishes to contest violations or penalties, it must do so within 15 working days. Citations, penalties, and abatement dates that the employer does not challenge become a final order of the Occupational Safety and Health Review Commission.