How to Survive an OSHA Inspection (Including Those Triggered by COVID-19)

The SARS-CoV-2 novel coronavirus (COVID-19) has brought uncertainty and a new laser-focus on safety to your workplace. OSHA has tried to help by issuing new guidance about increased inspections and recordkeeping requirements, but the list of issues that keep you up at night has likely grown. Being prepared ahead of time may help you survive an OSHA inspection later and give you one less thing to worry about.

OSHA Inspection Triggers

If your business has a National or Local Emphasis Program, OSHA does “Programmed Inspections.” They choose from a list of facilities that fall under a North American Industry Classification System (NAICS) code for that program, and they’ll randomly show up at your doorstep. Additionally, the agency recently stated they would be increasing inspections and prioritizing those that are COVID-19-related.

Imminent danger situations. If an OSHA inspector sees or receives information that employees are exposed to a hazard that could cause death or serious physical harm, the inspector will ask the employer to correct the hazard immediately or remove endangered employees, and may begin an inspection on the spot. Imminent danger situations are OSHA’s highest inspection priority.

Fatalities, hospitalizations, amputations. Any time you have an employee admitted to the hospital or they experience an amputation or loss of an eye, the accident must be reported to OSHA within 24 hours. Fatalities must be reported within 8 hours. Depending on the circumstances of the incident, these reports will generally lead to either a Rapid Response Investigation (RRI), in which OSHA will ask you to conduct a root cause analysis and document corrective actions, or an in-person investigation.

Employee complaints. An employee complaint could trigger an OSHA inspection, something that we’re increasingly seeing as people return to work. If one of your employees is not happy with the actions you’re taking to prevent the spread of COVID-19 or safety protocols, they can file a complaint. Typically, if OSHA officials don’t consider the charge a serious hazard, they may send a letter that you can address and send back to them. If they think it presents a significant danger, then they can show up, unannounced, based on that employee complaint.

In the case of COVID-19, as we see the number of these complaints increase, you will have to be able to make the case that you have made every effort to prevent the spread of the virus and the reasonable effort to support your employees. COVID-19-related OSHA inspections will vary by industry risk (from very high to low), the nature of the complaint(s), or other reasons like a random inspection. However, the latter will be less frequent in low-risk industries where employees aren’t expected to or aren’t at a high risk of coming into contact with a confirmed COVID-19 case, or aren’t in regular, close contact with the general public.

Referrals. If an EPA or other government inspector visits your workplace and they see something that OSHA should investigate, they can refer OSHA to investigate the issue. Referrals can also come from other sources, such as the media, law enforcement, and even individuals.

Follow-up inspections. If OSHA has already cited you, they’ll likely be back to make sure you completed action items and have addressed the violations. If you have a sister facility, similar uncorrected hazards found there can open the door to repeat or even willful violations.

What Are Employers’ Rights at an OSHA Inspection?

When OSHA comes to your front door, they must first contact the owner, operator, or whomever the person is that is in charge. If that person is absent, an inspector will generally wait for up to an hour for him or her to arrive.

Right of refusal. An employer can refuse entry to OSHA and require the agency to obtain a warrant; however, this strategy can backfire. Refusing their entrance may buy you a little time, but they will document it and they will come back with an inspection warrant. When they come back, as you might imagine, they may not be as pleasant. Generally, unless there is a compelling reason, it’s better not to refuse entry.

Once inside, they’ll present their OSHA identification card, not a business card. Be sure you already have a notification procedure in place so that you can let your facility know that OSHA is on-site and to be polite as everyone goes about their jobs.

Context and coordination. During the initial conference, before the inspection begins, ask about the purpose and possible reason for the visit. If there was an employee complaint that caused the inspection, you have the right to review a copy of it, but they will not reveal the complainant’s name. Outline and coordinate the kind of documentation they’ll want to review and what physical spaces they’ll need access to.

They’ll let you know which records they need to see. If you have a lot of files, don’t tell them to check out your filing cabinet. If they have extensive requests, ask them to put any requests for records in writing to facilitate the records retrieval. Some records, such as injury and illness logs and your hazard communication program, must be turned over to OSHA under the law, but for other materials, it’s a good practice to consult legal counsel to ensure that you don’t disclose more information than you’re required. The OSHA inspector will also explain if they’re doing any testing or monitoring while they’re there.

Confidentiality. If you have secure areas or confidential information that will be read, OSHA is required to respect your trade secrets and information. If they ask to see one section of your property, you don’t need to take them to other places that aren’t on the way. Limit what they view to what they ask for. Protect your confidential information and let the inspector know, “unless you can prove that you need to be in this area, we’d like you to not go through here.”

If an OSHA inspector sees something, even if it’s not in the scope of the inspection, the inspector is unlikely to ignore it, and the employer can be cited. For example, if the inspection is because of an employee complaint about COVID-19, but the compliance officer notices another hazard, such as an unlabeled chemical container, it will be documented. In some cases, unexpected hazards can even lead OSHA to expand the scope of its inspection from partial to comprehensive.

Most inspectors walk around with a video camera or take photos; if they see something that appears to be a violation, regardless of where it is, they will document it. Take side-by-side photos with the inspector and ask questions about anything they examine.

Accompany the inspectors as much as possible. You should ask questions, take notes during the tour, and thoroughly explain processes, without providing unnecessary details. The latter is very important as OSHA inspectors may not be knowledgeable about your business; they inspect so many different industries that they can’t be experts on all of them. It’s okay to educate them about your industry.

If there is an authorized employee representative at your facility, that person also has the right to accompany the compliance officer on the inspection and to be present during employee interviews.

OSHA Inspection Employee Interviews

OSHA can interview a “reasonable” number of employees, either in a group or individually. Non-managerial employees have the right to speak with OSHA privately. However, if OSHA wishes to interview a supervisor or manager, the employer has the right to be present, because supervisors and managers are considered representatives of the employer. Advise your employees to answer questions respectfully and honestly and reassure them that they will not get in trouble for telling the truth.

The inspectors will be assessing your employees, looking for the correct personal protective equipment (PPE), asking if they know how to access safety data sheets, and if they can find one in 5 minutes. They’ll also be looking at housekeeping issues that could cause accidents, e.g. blocked emergency equipment (including eyewash stations and fire extinguishers), spilled items, and any obstructions that could cause a trip or fall.

Reviewing Your Records

As mentioned above, during an OSHA inspection, you’ll need to provide certain records. You don’t need to give them more than they need, and make sure to keep track of what they copy. Again, if you are unsure as to whether you are required to provide a particular document to OSHA, consult legal counsel. OSHA will look specifically at a few things:

• OSHA 300 logs. If you are required to keep injury and illness records, OSHA will ask to review them, and you must produce them within 4 hours. Employers are required to retain OSHA 300 logs, OSHA 301 incident reports, and OSHA 300A annual summaries for 5 years. If it is between February 1 and April 30, the OSHA Form 300A, which summarizes the previous year’s work-related injuries and illnesses, must be posted in an employee-viewable area.
• Personal protective equipment hazard assessments to make sure your employees have the right PPE and that you have an accurate assessment of workplace hazards that your employees are exposed to.
• All labor law posters need to be displayed either on the wall in the break room or some other common area that is accessible to both employees and potential new hires.
• Your written programs and plans, including hazard communication programs and emergency action plans.
• Training and inspection records for subjects on which your employees are required to have received training, and any items or equipment that must receive periodic inspections.

Closing Conference

The last part of an OSHA inspection is a final meeting with you. They’ll review any suspected violations and recommended corrective actions with you, and talk about deadlines. If there were any samples taken during the inspection and they have the results available, they should give them to you at this time. Otherwise, they’ll send you the results after the samples are submitted to a lab and processed. They’ll give you another reminder about retaliation, particularly if the inspection was the result of an employee complaint or if any employees were implicated in a violation (like not wearing PPE). The closing conference is a time to ask questions and get information, not to argue with OSHA.

Life After An OSHA Inspection: The Final Report and Informal Conference

OSHA will issue any citations within six months of an inspection. Once you receive the violation citation, post it at or near the area of the violation and respond to OSHA within 15 business days. Your violation will either be categorized as other-than-serious, serious, willful, or repeated. Other-than-serious and serious violations can carry fines up to $13,494; repeated and willful violations can cost up to $134,937.

Consider the option of having an informal conference with OSHA to review your violations and possibly to negotiate with them. In some cases, a show of good faith on the part of the employer, such as a demonstrated willingness to correct hazards, can lead OSHA to categorize a violation in a less severe category. If you have completed all of your corrective actions, OSHA may reduce the penalty by as much as 50% and/or reduce the severity of the citation.

Informal Conferences

During an informal conference, which can be held at the OSHA office or on the phone, you’ll review each citation in order, and you’ll be expected to present your response and how you addressed the violation. OSHA will typically have the Assistant Area Director or Area Director attend this meeting, rather than the Compliance Officer who inspected your business. You’ll want the highest level of management from your company in attendance, as well as your legal counsel, any managers directly involved or impacted by the citations, and any safety professionals with whom you may be partnered.

You may be able to negotiate or settle the citation at this time. The right to contest is always available if you don’t agree with the citation. Whether to contest a particular citation is an issue to discuss with your legal counsel. If you choose to contest, a Notice to Contest will turn your case over to OSHA’s legal team and out of the hands of the area or assistant area director.

Regardless of whether an OSHA inspection is about a COVID-19 complaint, a lockout/tagout issue, or another workplace hazard, you want to be sure that your internal records and training are up-to-date and ready for OSHA’s review. Involve your employees in your safety planning and programming so they are invested in safer outcomes. While your list of worries may be long in this new environment, we don’t want workplace safety and OSHA to be what keeps you up at night.

Hannah Crawford is a Risk Management Consultant IV at KPA, the leading provider of Environment, Health & Safety (EHS) and Workforce Compliance software and services for mid-sized companies. She can be reached at info@kpa.io.