/>iA jobsite inspection by the Occupational Safety and Health Administration (OSHA) can result in substantial penalties where violations are found. Employers need to know their rights during an inspection — among the most important of which is the right to say “no” to an OSHA safety and health compliance officer (inspector) when he or she seeks to inspect a work place — in order to exercise a reasonable amount of control over an inspection and to preserve evidence in the event that alleged violations are found.
The protocols to be followed by your company need to be established and understood by supervisory as well as non-supervisory employees ahead of time and reinforced as necessary. All supervisory employees should be well versed in the company’s OSHA access policy and familiar with OSHA regulations and the company’s programs for compliance. Non-supervisory employees should understand that they have no obligation to grant access to OSHA and should refer any such access request to management. Employees should also be briefed on their rights if interviewed by OSHA in the course of an inspection. Similarly, where subcontractors are present on a jobsite, they need to direct any OSHA access request made to them to the jobsite supervisor or other authorized person.
When to Expect OSHA
OSHA is likely to show up for an inspection in one of four situations, listed below in the order of priority given by OSHA:
1. Imminent danger: these inspections often arise out of a complaint, usually made by a current or former employee, about workplace conditions
2. Fatality/catastrophe: as the name implies, such inspections immediately follow a fatality or catastrophe (the latter category, new in 2015, defined as an accident causing a single employee to be hospitalized
3. Follow-up: these occur in connection with violations found during prior inspections
4. Targeted or programmed: these are planned inspections generally in high-hazard industries
Of the four types of inspections, the second type (fatality/catastrophe caused) is predictable and the third (follow-up) is somewhat less so. Imminent danger and targeted or programmed inspections, often arising from employee complaints, are essentially unpredictable and therefore difficult to prepare for, thus reinforcing the need to have an inspection policy in place ahead of time.
What to Expect from OSHA
An OSHA inspection should start with an opening conference, which OSHA is required by law to conduct. In the opening conference, OSHA personnel are expected to present their credentials, state the nature of their visit and present any search warrant. A company representative should verify the inspector’s credentials, determine why the inspection is sought and determine whether the inspector has a search warrant. If the inspector has a search warrant, the company representative should review and obtain a copy of it along with any other documents presented. The inspector can then be asked to wait until a company safety officer or other official is present or consulted. (OSHA will usually wait a reasonable amount of time for such officer or official to arrive.)
If the inspector does not have a search warrant and your company policy requires one, you must instruct the inspector to leave the jobsite immediately. Do not allow an inspection to start; if the inspection is allowed to begin, OSHA may later argue that the company waived the right to require a warrant.
At the opening conference the company should establish the protocols covering the scope of the inspection, including whether employee interviews will occur. The opening conference and all subsequent contact with OSHA during the inspection should be handled by company personnel familiar with the company’s inspection-access policy and with authority to make decisions. An agreement may then be struck with the inspector on the protocol for the inspection, which may include a requirement that any crucial work in process will not be interrupted by the inspection.
The actual inspection, if permitted by the company, follows the opening conference. OSHA inspections can vary in scope from comprehensive “wall-to-wall walk-arounds” to partial inspections focused on a particular operation or location. The type of inspection sought, and the type of inspection that will be allowed, should be established in the opening conference. Be cautious about allowing OSHA to turn a limited inspection into a comprehensive one “on the fly.” Also be cautious about allowing OSHA to gain access to any part of your jobsite unaccompanied. Only personnel given such authority by the company can grant access to OSHA, and those lacking such authority need to understand this; e.g., a laborer must understand that he or she has no authority to allow access to OSHA.
Restrictions on OSHA
The company has the constitutional right to demand that OSHA obtain a search warrant before conducting an inspection. As noted, care must be taken not to waive this right by allowing OSHA to start an inspection before the right is invoked. The decision to invoke the right should be made in the opening conference once the purpose of OSHA’s visit is determined.
Whether the company should invoke its constitutional right to require a warrant can be a tough call. Denying access may be interpreted as an attempt to hide a serious violation. And denying access may cause OSHA to have a heightened interest in a jobsite or affiliated jobsites in the future. In addition, employees may wonder “what the company has to hide” if OSHA is denied access. Knowing why OSHA is there in the first place, and what it is likely to find if granted access, will inform the decision on whether or not to grant access or to require a search warrant.
OSHA is likely to accept — for a limited time — that an inspection is inconvenient because of work load at the location or because of the absence of key personnel, or simply because the company would like to confer with its lawyer first. Compared to a blank refusal of access, offering to provide access within a short period of time may reduce OSHA’s potential concern that the company is stonewalling in order to buy time to rectify a known safety violation. Of course this also allows the company some time to prepare for the inspection by making sure that housekeeping is in order, required documents such as injury logs and safety data sheets are in hand and that employees are aware of what is about to happen.
What to Do During the Inspection
The company should designate a safety officer or other tasked employee to accompany OSHA at all times during the inspection. Notes chronicling the inspection should usually be taken, but may be subject to later discovery; as such, any notes recorded by the company representative should be reviewed by legal counsel. It is also important to ensure that OSHA’s record of the inspection is not the only “evidence” available should the matter proceed to litigation. Photos, measurements and similar assessments taken by OSHA should be duplicated by the company. Inaccuracies or inconsistencies in measurements or depictions of the jobsite, equipment, etc., should be noted and pointed out to OSHA at the time. The company should make no concessions of violations or operational deficiencies during the inspection — doing so is unlikely to buy the company goodwill at the time and, worse, can be used against the company later.
OSHA’s Right to Interview Employees
Unless it is beyond the scope of any warrant presented, OSHA has the right to interview employees, privately or in the presence of a company representative. For management employees, the company can insist on the presence of legal counsel. The company can also insist that employees be interviewed after work hours and off of the jobsite. Where possible, the company safety officer (or legal counsel) should seek to interview the employees that OSHA is targeting, before the OSHA interview, in order to determine what relevant information the employee may have. Employees are entitled to a copy of any statement that they make to OSHA. All employees may need to be advised that they only need to answer the questions asked and need not feel compelled to volunteer information of any type.
After OSHA Leaves
Once the inspection is over, a closing conference should be held in which the OSHA inspector should describe any violations found. When the closing conference concludes, and particularly if violations have been alleged, a record in the form of a memorandum from management to legal counsel should be made seeking legal advice from counsel regarding attorney-client privilege and other matters. The memorandum should detail the violations alleged, the topics discussed with OSHA, who was present, who OSHA spoke with and what was said, and other pertinent details, including a chronology of the visit.
Conclusion
With proper planning the company can exert reasonable control over an OSHA inspection, and where violations are found can preserve necessary evidence for later use in litigation or in negotiation of a settlement.
