This is the twelfth installment in a series of articles intended to provide the reader with a very high-level overview of the Occupational Safety and Health (OSH) Act of 1970 and the Occupational Safety and Health Administration (OSHA) and how both influence workplaces in the United States.

By the time this series is complete, the reader should be conversant in the subjects covered and have developed a deeper understanding of how the OSH Act and OSHA work. The series is not—not can it be, of course—a comprehensive study of the OSH Act or OSHA capable of equipping the reader to address every issue that might arise.

The first article in this series provided a general overview of the OSH Act and OSHA; the second article examined OSHA’s rulemaking process; the third article reviewed an employer’s duty to comply with standards; the fourth article discussed the general duty clause; the fifth article addressed OSHA’s recordkeeping requirements; the sixth article covered employees’ and employers’ respective rights; the seventh article addressed whistleblower issues; the eighth article covered the intersection of employment law and safety issues; the ninth article discussed OSHA’s Hazard Communication Standard (HCS); the tenth article in the series examined voluntary safety and health self-audits; and the eleventh article, in two parts, reviewed OSHA’s citation process. In this twelfth article in the series, we focus on OSHA inspections and investigations.

OSHA inspections typically fall into five general categories: (1) Programmed Inspections, (2) Complaint Investigations, (3) Referrals, (4) Imminent Danger Investigations, and (5) Accident Investigations (including fatalities and catastrophes).

Quick Hits

• OSHA inspections typically begin with an unannounced arrival of a compliance officer, who may proceed with the inspection if the employer consents or after obtaining a warrant if entry is refused.
• The inspection process includes an opening conference, a walkaround inspection of the premises, document demands, and employee interviews, all of which are critical to the investigation.
• At the conclusion of an investigation, a closing conference is held where the compliance officer informs the employer of any citations and penalties and outlines the appeal process and warnings against retaliation.

The inspections typically begin with an “Opening Conference” wherein the compliance officer provides his or her identification and explains the inspection / investigation process, the scope of the inspection is discussed, and details regarding the physical inspection are hashed out. An employer that is being investigated may want to ensure that an experienced and a prepared “management representative” leads the process for the employer.

A “walkaround” inspection typically begins with the inspector proceeding with the management representative (and possibly a labor representative) to evaluate and document the premises based upon the purpose of the inspection. Inspectors can pursue evidence or conditions in “plain view” that may not have been part of the original reasons for the inspection.

OSHA will typically also demand documents related to the inspection. Documents can include safety program materials, compliance documents, training records, videos, photos, machine manuals, OSHA 300 logs, accident investigations, safety data sheets, safety meeting minutes, permits, and other records related to workplace safety.

Employee interviews are a cornerstone of investigations. Employers have a right to have a management representative or counsel present for OSHA interviews of management or supervisors. Non-management employees have rights in the interview process, including the right not to speak with the compliance officer if they so choose. Non-management employees are usually integral to investigations as they are usually the witnesses to any incident or accident and also have working knowledge of machinery, work processes, and tasks in the workplace. Interviews are fraught with complex risks and rights and are best managed by experienced management representatives or counsel.

At the conclusion of most investigations, the compliance officer will pursue a “closing conference” wherein the CSHO typically informs the employer of any citations and penalties, describes the citation appeal process, and offers other admonitions and standard warnings about discrimination and retaliation against employees who participated in the investigation.

Each aspect of an investigation is multifaceted, and especially in situations with an accident or fatality, the investigations can lead to citations and financial penalties. Inspections can move quickly, with demands for interviews occurring immediately upon the start of the investigation. Employers face challenges and risks with employee interviews, and the walkaround inspection can lead to the expansion of the investigation if there are hazards in plain view. In addition, inadequate or incomplete documents can create a narrative that damages the employer.