What to Do When the Regulator Calls: How to Handle an OSHA Inspection

February 12, 2009

This outline was used in a presentation for the Wisconsin Agri-Service Association (WASA) 2009 Safety Day and Convention. For more information on how to handle an OSHA inspection, please contact Mr. Sweeney at 608.283.6743 or csweeney@axley.com, or Troy D. Thompson at 608.283.6746 or tthompson@axley.com.

I. Introduction

A. Four Categories of OSHA Inspections

1. Fatality Inspection

a. If you suffer a fatality in the workplace, you must call OSHA within 8 hours

b. fatalities have obvious priority value with OSHA and an inspector will always
come to the site to investigate either that day or the next

2. Injury Inspection

3. Complaint Inspection

a. Formal Complaint

1) a complaint in writing by a current employee

2) will usually result in an inspection

b. Informal Complaint

1) a complaint from any source by any manner other than in writing

2) more likely to result in a letter from an inspector to the employer

3) less likely to give rise to an inspection

4. Scheduled / Wall-To-Wall Inspection

a. Inspectors descend on workplace and cover one end to the other noticing everything (frayed power cord, missing guardrail, blocked exit)

II. Preparation for an OSHA Inspection

A. The Process By Which You Handle An OSHA Inspection Actually Begins Before The Inspectors Arrive

1. Prepare and adopt proper OSHA written safety and health programs.

2. Ensure that all safety programs have effective rules that are clearly communicated to employees and consistently enforced.

3. Conduct self-inspections based upon an OSHA model and use the programs available to you such as the Voluntary Protection Program (VPP) from OSHA as well as professional safety engineers and legal advice.

4. Establish internal written procedures that clearly and carefully spell out the steps you will take when the OSHA inspector appears at your door.

B. Proper OSHA Written Safety Programs

1. First thing inspected will be the written safety programs.

2. If the written programs are carefully thought out, well-presented, and in compliance with OSHA standards, the inspector begins the inspection with a good first impression – very important.

3. However, make sure that employees receive effective training under the safety programs and that they are fully implemented.

a. If the company has good written programs with no training and no implementation, there is a substantial risk of the company being found to have willfully violated OSHA regulations.

C. Effective Safety Programs

1. To have an effective safety program, the employer must establish safety rules governing employee conduct.

a. Rules should be in writing.

b. Rules must be communicated to employees by training/communication in:

1) Classroom setting, on-the-job training, or informal meeting.

2) Make sure to document the training/rules provided and to whom provided.

a) Too often companies find that they have a good safety rule that was communicated to all employees, except the one who broke the rule

c. Rules must be enforced and employer must be able to prove that rules are enforced.

1) This does not mean you have to show that the particular rule was enforced but that the particular safety program was enforced.

a) Proved through testimony and documentary evidence showing a training program as well as progressive (3 step) discipline was administered (verbal warning to written reprimands, suspensions and terminations)

D. Self-Inspections

1. Third aspect of preparing for an OSHA inspection is performing self-inspections.

a. Alerts you to problems that may exist and allows you to identify and correct the problem before OSHA does it for you.

2. Make a checklist, focus on a particular aspect, and refer to the OSHA standards when you inspect your facility.

E. Have a Written Plan

1. The fourth important part of preparing for an OSHA inspection is to plan how the investigation will be handled when it happens

2. Put together a written plan.

a. Detail who will represent the company as the “contact person”: human resource director, safety director, outside safety professional, or an attorney?

1) Have a hierarchy of people in case contact person is out of the office.

2) Plan to have two persons go on the walk around with the inspector if possible.

b. Detail how the people at the front desk will act and who they will contact when the OSHA inspector arrives.

c. Decide whether you will insist on a warrant, or, if there is no warrant, whether you will give your consent or limited consent to an OSHA inspection.

3. When an investigator appears, you do not have to turn him/her loose without supervision.

a. Show the inspector into an office to wait for the contact person.

b. While the inspector is in the office, take advantage of that short time to do a quick survey of the site to correct potential violations.

III. The OSHA Inspection

A. When the Inspector Arrives

1. Inspector will ask to see the person in charge.

a. Person in charge must appear within a “reasonable time” or the inspector may consider any given employee to be in charge.

b. Employer may ask for time to contact the contact person as long as the request does not impose unreasonable delays.

c. OSHA directives require the inspection officer to give employees a reasonable period of time to have the necessary contact person come to the work site.

2. Supervisor should ask to see the inspector’s credentials upon arrival: photograph ID and service number. This can be verified by calling the nearest OSHA office.

3. Supervisor should next ask why the inspector has chosen the facility for inspection. This will indicate the type of inspection that will be conducted.

a. May be part of a general scheduled inspection – in which case the inspection will be a wall-to-wall inspection.

b. If a fatality, injury or complaint inspection, it should be limited to the accident or the complaint.

4. Ask whether inspector has a warrant to inspect. Supervisor must decide whether to permit an inspection if the inspector does not have a search warrant.

a. The U.S. Supreme Court has ruled that OSHA cannot investigate over an employer’s objection without a search warrant (Marshall v. Barlow’s Inc., 436 U.S. 307 (1978)).

b. Look at the facts of the case; if the inspection is based upon a fatality or complaint, the inspector likely may have probable cause to conduct the inspection without a warrant. If inspection is a general scheduled inspection, then may want to insist on a warrant to limit the inspection to the scope of the warrant.

c. Advantages of requesting the warrant:

1) Means the inspector must prove to a neutral judicial officer that there is “probable cause” to conduct an investigation, which may prevent a discriminatory, harassing inspection.

2) Warrants serve to limit the scope of the inspection, evidence obtained under an invalid or overbroad warrant may be deemed inadmissible.

3) Warrants often limit the amount of time that the inspector can spend in the facility.

d. Disadvantages of a warrant:

1) Some inspectors may become extra hard on employers who request a warrant.

a) However, many inspectors realize that it is your right to request the warrant and are not upset.

B. The Actual Inspection

1. First thing an inspector does is review of the written safety programs and OSHA logs. If you have written and implemented good programs, then this will create a good first impression.

2. The inspector will then perform a walkaround survey.

a. Two management representatives should always accompany the inspector on the walkaround, along with an employee representative; if unionized, then one union representative serves as the employee representative.

1) Be careful who you select as the employee representative; the wrong employee could voice complaints to the inspector.

b. One management representative should:

1) Take notes of all remarks and questions asked by the inspector, which should not be provided to the inspector.

2) Take photographs of anything the inspector takes photos of.

3) Have available gauges and meters to measure the same things the inspector will measure, such as environmental and noise samples.

a) These things are not always done, and sometimes irritate the inspector, but they can be very helpful to you and will not create a problem if done in a courteous manner.

c. Do not let the inspector have free reign to be “nice”.

d. Anything the management representative says can and will be used against them so do not volunteer any information; do not offer areas to inspect or discuss past safety problems or accidents.

e. When taking the inspector to an accident or complaint site, do not walk through the middle of the facility. Any problems the inspector can see in plain site can be investigated. Instead, go around the outside of the building, or some other way to minimize the chances of the inspector noticing problems.

f. The on-site inspection must stay within the declared limits, whether the inspection is based upon consent or a warrant.

g. Do not give OSHA a copy of employee safety rules, company records, or documents.

h. Do not give any estimates of abatement time needed.

i. Do not conduct any demonstrations for the inspector.

j. Ask for the means of abatement for each apparent violation mentioned by the inspector.

k. Do not try to talk the inspector out of a violation.

l. Ask questions about the inspector’s background and experience in each subject matter covered by the apparent violation mentioned. Carefully record the entire discussion. Keep all materials given to the employer by the OSHA inspector and note the inspector’s name and date of inspection.

3. Inspection officer requests to speak with an employee.

a. If an inspection officer requests to speak with an employee, the request should probably be granted.

1) However, if employee cannot be reasonably removed from the work station, then the inspector should be informed that the employee will be made available as soon as possible.

2) Employer is not required to allow inspector to do a complete interview of the employee during work hours; thus, employer can require that inspector make arrangements to speak with employee during non-work hours such as lunch, break, or after hours.

a) Remarkable how less enthusiastic employees are to talk on their own time

3) Employer can advise employees they are not required to speak with inspector, without OSHA issuing a subpoena, which it seldom does.

4) Inspector is not allowed to make tape recordings of employee’s conversations without employer’s permission.

5) Employers should not ask employees questions while the inspector is there, as subject of the question may be overheard by the inspector and brought up.

IV. The Closing Conference

A. After the Review Of Records And Inspection, The Inspector Will Hold A Closing Conference

1. The inspector will complete his or her records that will later result in recommendations for citations, abatements and penalties.

2. Inspector will also identify the standards believed to be violated; also may discuss the cost of the abatement and the time in which the employer believes it can reasonably abate the alleged violations.

3. Use the closing conference to thoroughly question the inspector on all areas of possible violations; this will enable you to collect evidence while it is still fresh and not three or four weeks later when the citation is received.

4. Also, use the closing conference to mention extenuating circumstances such as the inconsequential aspects of the alleged violation, any abatement efforts already undertaken, conflicting advice received, clean safety records, the detrimental effects on the business, and any other relevant information.

More resources:

“Top 10 Mistakes Employers Make When Dealing with OSHA Inspections,” Winberly Lawson & Seals, PLLC

“You, OSHA and Your Jobsite,” OSHA Inspection Data Gathering Form

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For more information about "What to Do When the Regulator Calls: How to Handle an OSHA Inspection," contact Buck V. Sweeney at csweeney@axley.com or 608.283.6743 or Troy D. Thompson at tthompson@axley.com or 608.283.6746.