Surviving OSHA inspections
24 April 2008
The Occupational Safety and Health Act of 1970 gives the Occupational Safety and Health Administration (OSHA) the authority to conduct workplace inspections and investigations to determine whether employers are complying with the standards issued by the agency.
An OSHA inspection is usually triggered by a random selection, employee complaint or a targeted industry inspection. Employers are also required to report within eight hours of the incident, occupational accidents that result in an employee fatality or hospitalization of three or more employees as a result of an injury or exposure related to their employment. OSHA is then required to appear at your facility within 24 hours of the notification from the employer.
Another event that may cause an investigation is negative workplace exposure by the media. An unsafe condition in the newspaper or on the nightly news will draw attention from the OSHA administration as they are obligated to address any concerns from the media. Of course working across the street from the local OSHA office exposes your company to compliance officers each day.
Right to enter
OSHA has the right to enter without delay to inspect and investigate during regular working hours and at other reasonable times in a reasonable manner. This includes any such place of employment, and all pertinent conditions, equipment, structures, materials or machines. They may also question employees privately and they can review records required by the OSHA Act or related to the purpose of the inspection.
In most cases you will not be notified that OSHA is coming to your location. Be sure to ask the compliance officer for identification and the reason for the visit. The employer has the right to refuse an inspection, although this is normally not a good idea. The compliance officer will come back with a warrant and will assume that you are hiding information. A hostile compliance officer will surely conduct a more comprehensive investigation when returning with a warrant.
Devise a plan
The best approach is having a plan to survive such an inspection. Train managers and supervisors in the event that OSHA comes knocking at your door. Management should know where all OSHA documents are located. Be sure to have five years of OSHA Injury and Illness Logs available in addition to written safety programs and all company training records for the compliance officer's review.
Be cooperative and cordial to the compliance officer. The compliance officer will give your company a reasonable amount of time to provide a company supervisor or manager. An employee may also be asked to accompany the compliance officer. If the reason for the inspection is an employee complaint, the compliance officer is obligated to address that issue.
Take the compliance officer directly to the area, equipment or project that involves the complaint. Any violation or hazard seen by the compliance officer en route to or during the inspection can also be cited. It is not uncommon to take the compliance officer on a long route avoiding work areas and possible problems. Be sure to correct any potential violations. Also, take notes and photos or video of all the information the compliance officer is gathering. The purpose of the inspection is to gather evidence of violations. It is best to ask for the scope of the inspection and a written list of documents the compliance officer will be requesting. Understand that what you say will be used against your company. Many times it may be best to say “I do not know.”
Following the inspection process the compliance officer will probably ask to interview non supervisor-type employees. A compliance officer has the right to speak to employees in private. Employees are under no obligation to provide written statements. Many times compliance officers will lead employees into signing statements. Written signed statements represent strong evidence against the employer.
At the end of the inspection or investigation OSHA will conduct a closing conference. This represents the end of the investigation and is the opportunity to discuss the compliance officer's findings, if any citations are expected to be issued and any corrections that need to be immediately addressed. Do not give out additional information during the closing conference. OSHA could use this information against your company.
The compliance officer will then meet with the area supervisor to discuss what citations, if any, should be issued. The OSHA Act requires all citations be issued within six months of the violation. On receiving a citation the employer has 15 working days to contest the citation before it becomes an order from the Department of Labor.
There are three options: write a check for the citation(s), ask for an informal conference, or file a Notice to Contest. For all three options, it is advisable to speak to legal counsel or a safety representative with knowledge of the OSHA system.