By Joseph P. Paranac Jr.
Joseph P. Paranac Jr. is a member of the law firm of St. John & Wayne LLC and chair of its OSHA Department. He has broad experience in managing OSHA inspections following workplace fatalities and catastrophic accidents, in contesting OSHA citations, and in securing major reductions of OSHA fines.
“The OSHA inspector is here!” Those words strike fear into the hearts of otherwise unflappable construction superintendents and supervisors. No one, it seems, relishes the thought of having an OSHA inspector comb through their workplace in a search for potential violations.
Unfortunately, the possibility of an OSHA inspector appearing at your workplace and ultimately issuing citations is very real. In fiscal 2005 alone, OSHA conducted 38,714 inspections and found 85,307 violations.
However, you don’t have to be fearful when OSHA knocks. You can successfully manage an OSHA inspection – provided you follow two sets of rules. The first set is a safety checklist of those provisions you should put in place even before an OSHA inspector arrives. The second set consists of “dos and don’ts” you should live by once an OSHA compliance officer actually approaches your doorstep.
To facilitate a safe workplace and prepare for the day OSHA decides to inspect, take the time to do the following:
- Develop a written safety and health program. The program, which should be tailored to the activities at your workplace, distributed to each employee and updated annually, will go a long way toward showing an OSHA inspector that you take safety seriously.
- Establish a disciplinary program for those employees who violate safety rules. This means documenting every disciplinary measure you take. Putting this program in place demonstrates your commitment to a safe job site and may provide an important defense to OSHA citations.
- Designate an on-site safety officer who has the authority to discipline employees for safety rule infractions.
- Train your employees to wear the proper protective equipment, to safely operate tools and handle materials they work with, and to recognize and report safety hazards. This should be live training – not just a video – and reflected in detailed training records.
- Conduct regularly scheduled toolbox safety meetings (see related article on page 16) at which you can address specific safety issues and at which employees can raise safety concerns. Then document those meetings.
- Make sure your OSHA 300 Logs and OSHA 301 Incident Reports, which track employee injuries and illnesses, are accurate and up to date. These are the first records an OSHA inspector will ask to review.
Preparation is the key here. Laying this essential safety groundwork before OSHA shows up at your workplace will calm your fears about an OSHA inspection and maximize your chances of that inspection going smoothly.
The warrant issue
When an OSHA compliance officer does arrive at your workplace for an inspection, you have an important initial decision to make: Should you consent to the inspection or refuse entry and force OSHA to go to court and obtain a warrant?
If the inspection has been triggered by a workplace accident, requiring OSHA to obtain a warrant (which will probably take at least several days) will allow you the opportunity to investigate the accident and prepare defenses – which may be especially important, because such accidents commonly spawn litigation. In addition, the warrant that OSHA will eventually obtain is usually very specific in defining what areas of your workplace OSHA may inspect and how long the inspection can last. On the other hand, forcing OSHA to get a warrant may result in closer scrutiny of your workplace by OSHA and a higher number of OSHA citations and fines issued to you following the inspection. Refusing entry may also harm your image with OSHA, the press and the public, who may view you as an
unsafe employer who has something
to “cover up.”
Bottom line: The warrant issue is a critical threshold determination you should make only after consulting your OSHA attorney. Politely ask the OSHA inspector to wait so you can make that phone call.
Inspection dos and don’ts
In addition to your right to refuse entry to an OSHA inspector, you possess significant legal rights during the OSHA inspection process. Your ability to effectively manage the inspection hinges on your exercise of those rights.
Your first move should be to appoint someone familiar with OSHA inspection procedures to be your designated representative during an inspection. Keep in mind that designating your OSHA attorney or outside safety consultant as your representative will allow you to delay the inspection for a few hours or a day until your representative can arrive on site. This may serve the same purpose as requiring OSHA to obtain a warrant.
Your inspection representative should then:
- Ask the OSHA inspector at the opening conference to identify the reason for the inspection. If the inspection was triggered by an employee complaint, your representative should ask for a copy of the complaint (the employee’s name will be deleted).
- Also ask the OSHA inspector at the opening conference to identify the scope (whether it’s aimed at a specific area or the entire site) and duration of the inspection.
- Escort the OSHA inspector during the inspector’s walk-around of the workplace. The OSHA inspector should never be allowed to walk through the workplace alone.
- Take detailed notes of where the inspector goes, what he/she sees and what he/she says. If the inspector takes photos or videos, so should your representative.
- Ask the inspector for duplicates of all physical samples and copies of all test results.
- Be present at OSHA interviews of management personnel, and prepare those individuals before the interviews. While OSHA can interview hourly employees outside the presence of management, your representative has the right to speak with the employees first and inform them that they may request a management representative to be present during the interview.
- Answer the OSHA inspector’s questions, but avoid volunteering information.
Once the inspection starts, you should remain mindful that what your inspection representative says during that inspection can and will be used against you by OSHA. This means that your representative:
- Should not agree with the OSHA inspector that a condition the inspector observes is an OSHA violation. Agreeing that a violation exists will almost always result in a citation and fines.
- Should not argue with the inspector. Attempts to defend against possible violations may undermine your defenses.
- Should not be hostile to or lie to the OSHA inspector.
- Should not punish any employee who speaks to or cooperates with OSHA.
The same rules apply to the closing conference, the last step in the inspection process, during which the OSHA inspector will list the alleged violations uncovered during the inspection. Your representative should closely question (without arguing with) the inspector about each violation and the evidence that the inspector believes supports the violation. In most cases, the OSHA inspector has already made up his/her mind, and any attempts to defend against the violation may result in inadvertent admissions that can hurt you. However, if the inspector has made a clear mistake of fact – such as concluding that a piece of equipment was not inspected when you have an inspection log, unreviewed by the inspector, proving that it was inspected – your representative should produce the log to try to head off the issuance of a citation. Again, utilizing a representative experienced in OSHA inspection procedures who can strike the proper balance is critical to your success here.
During fiscal 2005, OSHA fined employers more than $90 million after inspecting their workplaces. Following these rules – and vigilantly protecting your legal rights – is the surest way to both effectively manage an OSHA inspection and minimize your financial exposure.