Preparing for an OSHA Inspection

Q. What should I do if an OSHA compliance officer comes to my plant?—E.M.

A. “The Occupational Safety and Health Administration is committed to strong, fair and effective enforcement of safety and health requirements in the workplace. OSHA compliance officers, called compliance safety and health officers, are experienced, well-trained industrial hygienists and safety professionals whose goal is to assure compliance with OSHA requirements and help employers and workers reduce on-the-job hazards and prevent injuries, illnesses and deaths in the workplace.” — OSHA Fact Sheet: OSHA Inspections (undated)

“There is a new sheriff in town. Make no mistake about it, the Department of Labor is back in the enforcement business. We are serious, very serious.” —Secretary of Labor Hilda Solis in a June 2009 speech at the American Society of Safety Engineers’ annual conference

I am sure that this second quote in particular got your attention. The question is not what to do “if” but “when” an OSHA compliance officer pays your plant a visit. The frequency of an OSHA inspection depends on several different factors, including imminent endangerment, fatalities, complaints, accidents (especially their frequency is over the industry standard) and type of industry, or whether it is simply your company’s turn. 

First off, you do not have to let in the OSHA compliance officer or any government entity without a search warrant. Companies, like individuals, have the U.S. Constitution’s Fourth Amendment right of no unreasonable search or seizure. However, I typically do not advise my clients to deny access except in unusual circumstances because, when the inspector does get the search warrant, you can bet that he/she will come with others and inspect your facility with “a fine-toothed comb.” But just because you let the OSHA compliance officer inspect your facility does not mean you have to let other non-employee third parties accompany the inspector, such as a union representative in a non-union shop or a community advocate. OSHA may disagree and encourage you to let these third parties accompany the compliance officer during the inspection, based on a recent letter opinion. However, if you encounter this issue, I strongly suggest you get legal counsel involved immediately. 

As to what to do when you let the inspector in: the first step is to go into a conference room with them and ask for credentials, which the officer will expect. Their identification should include both a picture and an identification number. Exchange cards. Ask why your facility was selected for an inspection and the scope of the inspection, including what areas the officer wants to walk around in and what records they want to see. This is your opportunity to narrow the scope of the inspection.

If the compliance officer wants to interview employees, you may want to require that the interviews be scheduled in advance and in a conference room, not on the shop floor. Because management can bind the company, I strongly suggest you consult with your attorney before any interviews take place so you clearly understand the company’s rights. If the inspector indicates that the inspection is the result of a complaint, you have the right to a copy of the complaint and should ask for it before the walk-through begins.

Once the walk-through begins, it should be limited to the areas identified in the opening conference, and these should be areas in which injury or illness could occur. During the walk-through, try to have present one person for each compliance officer and one person to take notes. If the inspector notes a hazard or violation, try to get it corrected immediately. If you are able to correct it while the officer is still at your facility, do so, and then show the corrective action to him/her. The compliance officer will also review worksite injury and illness records and look for posting of the official OSHA poster.

After the walk-through, go back to the conference room for a closing conference. Ask if the compliance officer observed any “violations” and what steps they are recommending. Note that it is not uncommon for an inspector to claim a violation for a practice that has been in place for a long time and that was considered in compliance by prior compliance officers. Based on my experience, this is especially true where “pinch points” are concerned. The issue of whether it meets the standard is something to negotiate with OSHA and to make a case as to why it is compliant.

At the end of the closing conference, assuming violations are identified (which is often the case), the compliance officer will discuss the citation process, which includes the company receiving a notice with the citation(s) within six months of the inspection; the availability of an informal conference with OSHA; and the process for contesting citations and proposed penalties. It is not uncommon for the inspector to conduct a follow-up inspection, which is another reason to correct the “violations” as soon as possible. I always recommend that my clients document the corrections and forward the documentation as soon as possible to OSHA. It is much easier to respond to a citation that indicated the hazard has been corrected.

If you receive a citation, it will list the OSHA requirements that allegedly have been violated and any proposed penalties, and will give a deadline for correcting the alleged hazards (assuming they have not already been corrected). Violations are categorized as “other-than-serious,” “serious,” “willful,” “repeated” and “failure to abate.” You do not want “repeated” or “willful” violations in particular, as the penalty amounts are significantly increased. This higher fine for the “repeated” violation is also a significant reason why a company should contest any violation it believes is unjustified, because you never know when OSHA will be back and cite the company again for the same violation. Penalties may be reduced based on the company’s good faith, inspection history and size of business.

This is simply an overview of the OSHA process. I highly recommend that if you do go through an OSHA inspection you call your attorney afterwards and go through your notes so that you are prepared when the citation arrives and you can appropriately and proactively respond.