By Charles B. Palmer and Carlos R. Pastrana
If given a choice, no employer would willingly choose to have to go through an OSHA inspection. The mere thought of having an inspector walking through your worksite, manufacturing facility, warehouse or office in search of potential violations is usually enough to make most employers cringe. While some employers feel they have nothing to hide, an OSHA inspection is a lot like seeing flashing lights in your rearview mirror. The reality is that an OSHA inspector knocking on the door of your business is a very real possibility, and if you are lucky, you will end up with just a warning.
In 2013, OSHA conducted almost 39,228 inspections. In all, between OSHA and State programs, more than 200,000 violations are cited every year. So, generally speaking, one or more citations can be expected as the result of an inspection.
Given OSHA’s aggressive enforcement strategy, the stakes are higher than ever, and employers should educate themselves on how to best manage, and ultimately “survive” an OSHA inspection. In this article, we will outline and discuss some important strategies for making OSHA inspections less painful.
The most important principle to keep in mind ahead of an OSHA investigation is that OSHA cases are not preemptively “won” during inspections, but can easily be “lost” because of a disastrous inspection. The keys are to put together an adequate plan for managing inspections, to prepare and train key personnel in advance of the inspection, and to execute the plan during the inspection. The process of doing so will improve the chances of a successful outcome and, more importantly, will improve the safety of your workplace.
I. What to do before the investigation
The first thing employers should do is make sure that everyone at the site knows what to do if OSHA shows up, and what their roles will be during the investigation. The employer should instruct its Receptionist or front-line employees to not allow the Compliance Safety and Health Officer (CSHO) beyond the reception area (or job trailer or gate at a construction site) without first contacting the designated representative and waiting for his or her approval. A management representative should be designated to be responsible for handling OSHA investigations and inspections. The employer should provide this individual with a detailed OSHA Inspection Standard Operating Procedure (SOP) that covers the “do’s and don’ts” outlined in this article, and should ensure that he or she knows and understands the SOP.
Next, the employer should choose who else is going to participate in the inspection. Only the right people should be considered, given the stakes. This usually means trustworthy and competent people with the right amount of knowledge and expertise in the company’s operations and safety standards, such as the Safety Director or the equivalent position. It is crucial that all those who will be involved in OSHA inspections have copies of the inspection SOP and have been trained on it.
The representative the employer has designated to handle the OSHA investigation should be familiar with all the documents that might be requested by OSHA. Training documents should be readily available. Often employees are trained, but documentation is either lacking, or not organized in a way that it can be found during an inspection. Many times an employer is fined because an employee is not following the rules. Without documented training on the rules, such fines are usually upheld.
The employer’s representative should also know what documents, records or work areas are restricted under Company policy, including operations and processes which might be trade secrets, as well as voluntarily-kept corporate and insurer safety and health audits.
Once your team is assembled, a mock inspection should be conducted and documented. The documentation should identify the location of the observed safety concern, corrective action to be evaluated, responsible individual, and estimated due date, as well as a column with the completion date or continuing steps. Generally, voluntary self-audits are not required to be disclosed to OSHA, but it is important that a plan for follow-up is in place and executed, due to the potential for increased liability. See Wisconsin Business Voice, January 2014, page 34.
II. What to do during the investigation
The OSHA Act prohibits the advance notice of an inspection, so OSHA will show up unannounced. The OSHA Act also states that OSHA has the right to enter “without delay”. However, the Supreme Court has held that an employer may demand a warrant, except where there is imminent danger. The CSHO should be treated as a regular short-notice visitor, which means that, for non-emergency inspections, he or she may expect to wait until the employer is ready to receive him or her. You are not expected to immediately stop or interrupt your everyday business when the CSHO shows up. As a general rule, try to keep the delay to an hour, and if it is going to be longer, seek a resolution to that scheduling challenge with the CSHO. But if there has been a fatality or other severe accident, the inspection should be given more urgent attention, and delay should be avoided.
Taking and keeping control of the inspection and its scope is more critical than ever, given OSHA’s trend of aggressively pursuing its investigations. The designated representative should not hesitate to take control of the inspection from the outset. Before the inspection has even begun, he or she should ask the CSHO to state the reason or basis for the inspection. You have a right to know the scope of the investigation, both to be able to cooperate with the investigation and to protect your rights. The designated representative should ask the CSHO to specify the places and things to be inspected; and whether the inspector intends to take photographs, make videotapes, interview employees, review documents, or conduct air, noise or other sampling. Throughout his or her interaction with the CSHO, the designated representative should be civil and professional. They have a job to perform and usually will reflect the same professional treatment they are given.
Although employers are legally not required to admit an OSHA inspector into the non-public portion of their premises without a search warrant, it is not recommended that the employer routinely insist on the CSHO providing a warrant. A warrant will delay the inspection only temporarily, but with a warrant, the CSHO will control the timing of the return visit, and will not be required to cooperate in scheduling subsequent visits. However, the inspection should not be allowed to commence or proceed until you are clear about the basis and purpose of the investigation and agree that the scope is reasonably related to the purpose.
The designated representative should accompany the CSHO at all times, and never leave him unattended nor let him or her have the run of the workplace. Be present for any photos, videos, sampling or interviews the CSHO takes, and take note of them, as well as of any notable developments during the investigation. Duplicate the CSHO’s photos by taking the same pictures, and do side by side sampling: if directed by legal counsel, these photos and samples generally need not be disclosed to OSHA.
Ensure understanding of the CSHO’s remarks, and do not hesitate to ask the CSHO to explain. The designated representative, however, should abstain from asking questions for the sake of asking questions, from volunteering unrequested opinions or information, or from pretending that he or she knows more than he or she actually knows.
Obtain copies of all specific records on which OSHA relies, or which the CSHO references, including complaints, referrals, lists or documents supporting the reason for the inspection, and interpretations or directives. The representative should keep a running list of the documents or records requested by the CSHO during the inspection, and should tell the CSHO that all responsive documents will be gathered and produced as promptly as possible. Certain specific documents must be produced within prescribed times under some OSHA standards, so clarify any deadlines and write them down. If, at any time, the representative is unsure as to how to proceed or respond to a question or request, he or she should stay calm and simply inform the CSHO that he or she will have to get back to him or her later with a definite answer. Write down the commitment and make sure to follow up.
III. What to do after the investigation
Make sure that, before the CSHO leaves, you are fully aware of the next procedural steps. The employer should ask the CSHO if the investigation is over, or if he or she intends to come back to the worksite to continue the investigation and, if so, if he or she will need to interview employees or do any type of sampling. This will be important, so that personnel or consultants can be scheduled to participate in follow-up inspections or side-by-side sampling. If the CSHO does intend to interview more employees, the employer should ask him or her which specific employees he or she intends to interview, and make sure that the employees are scheduled for the CSHO’s next visit, and that they have been adequately prepared to understand the reasons for the inspection and that they need not worry about personal liability. The employer should also ask what the procedural timetable is, and whether a closing conference will be scheduled and approximately when. Get the CSHO’s business card, so you can follow-up.
Finally, the employer should request the CSHO to share his or her impressions or preliminary conclusions, including apparent violations, long-term or imminent issues, and positive safety measures he or she observed throughout the investigation. Good faith credit is given for quickly fixing noted problems, but if not informed of concerns, the employer will not have that opportunity. In fact, employers have been subjected to employee complaints following an inspection, especially where employees have been informed by OSHA of hazards that have not been explained to the employer and that have not been corrected. Sometimes, CSHO’s want to avoid confrontation and downplay their intent to cite the employer, or they fail to explain their concerns. Later, they may insist to their supervisor when “called on the carpet” that the employer was told about an issue and chose to ignore it. This poses a problem of trust between the employer and agency and deprives the employer (and employees) of the benefit of investigation and quick abatement. So, don’t rush the CSHO out the door just so it can be over. You need to understand any corrective actions that are needed. This discussion will also create an additional benefit because it can lead to the opportunity to clear up any misunderstanding the CSHO may have regarding the safety measures that are in place.
Although there is certainly nothing pleasant or fun about the looming specter of OSHA investigations, you can certainly take active steps to make the eventual process more seamless and even advantageous to you:
• Create an inspection team;
• Have the team perform mock audits, at least annually;
• Understand the purpose of an inspection and limit the scope to that purpose;
• Require a warrant if the CSHO is not professional or reasonable;
• Document the inspection and determine what will be cited before the CSHO leaves.
The recommendations outlined in this article should, at the very least, decrease the likelihood of eventual citations for safety violations being issued, and make your working relationship with OSHA more professional.