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OSHA Inspections: Asserting Legal Rights While Minimizing Exposure to Citations and Penalties – Part I

From the beginning of the Obama administration, it was clear enforcement was going to be one of the primary watch words at OSHA and the Department of Labor.

In one of her earliest speeches, then-Secretary of Labor Hilda Solis stated “there was a new sheriff in town” and that she was bringing back enforcement to OSHA and other agencies within the Department of Labor. As part of this enforcement focus, the current Assistant Secretary of Labor for OSHA, Dr. David Michaels, has on numerous occasions indicated that part of the enforcement strategy was to utilize press releases to shame employers into compliance.

At the same time, the number of citations being issued and the penalty amounts for those citations has significantly increased. While OSHA has increased the enforcement focus of the agency, federal, state and private industry are focused on a company’s safety record, particularly on OSHA citations as a determinative factor in whether that employer will be allowed to bid on either government or private industry contracts. This being the case, it is critical for all employers to be ready to effectively deal with an OSHA inspection by asserting their legal rights, while at the same time staying on top of any OSHA inspection in order to minimize potential citations as well as significant penalties.

A Safe and Compliant Worksite

The first step in preparing for an OSHA inspection is to maintain a safe and compliant worksite. This can be achieved by first determining what specific OSHA safety and health standards are applicable to the employer’s worksite and, at the same time, assessing the worksite to determine if other safety and health hazards need to be either eliminated or controlled. As part of any pre-OSHA inspection action plan, the employer should ensure that the required OSHA poster is present, that appropriate managers are assigned responsibilities for the conduct and the oversight of the inspection, and that the necessary training and documentation of that training (as well as all OSHA recordkeeping) is fully in place. Also, prior to any inspection, an employer should review all previous OSHA citations that have been received by that worksite or other company worksites, which could form the basis of a repeat violation should OSHA inspect that site. Finally, employers should review all insurance and third-party audits conducted at the facility, as well as any internal periodic audits or reviews that have been conducted to ensure that all potential safety and health concerns have been either abated or addressed.

One question raised by many employers is why OSHA picked the location for an inspection. In its Field Operations Manual, OSHA sets forth the inspection priorities, which include:

  • imminent-danger situation;
  • fatalities and catastrophic accidents;
  • employee complaints and referrals; and
  • high-hazard industries and special emphasis programs inspections.

No matter the type of inspection, it is critical for employers to remember that this is their facility and that they have certain legal rights, including that the inspection be conducted in a reasonable manner and at a reasonable time. In addition, the act requires that OSHA complete its inspection within six months of the start of the inspection. Also, it is critical that the employer be cooperative and responsive, but maintain control during the entire inspection.

The Inspection

It should be noted that OSHA normally does not give any advance notice of the start of the inspection. In fact, there is a criminal provision in the OSHA Act for providing advance notice of an inspection. In addition, OSHA maintains a one-hour rule where if the employer does not allow the inspection to start with a one-hour period, the inspector will treat this as a refusal of entry and seek a warrant.

Some employers have a corporate-wide policy that requires a warrant from any government agency in order to enter their facility. Whether an employer should demand a warrant is really a policy call. Few employers routinely require warrants, but in some cases, particularly in fatality situations, requesting a warrant may provide the necessary time for the employer to ensure that the appropriate managers and, in some cases, legal counsel are present at the start of the inspection. It should be noted that the employer will not be advised when OSHA is seeking a warrant and will not normally be present because warrant issuances are ex parte proceedings.

Once the OSHA inspector arrives, he or she will conduct an opening conference. Normally the opening conference is held with the management of the company and union representatives (if the facility is represented by a union).

It is important at the opening conference for the employer to ascertain the purpose of the inspection. This is particularly true if this is a complaint inspection, because that will establish the scope of the inspection. It is critical that the employer get a copy of the complaint prior to the start of the worksite walkaround. Also at the opening conference, it is important that employers set forth the ground rules under which OSHA will conduct the inspection. Those ground rules include:

  • During the walkaround, the OSHA inspector(s) must be accompanied when on the work floor or at the worksite by at least two members of management at all times.
  • Documents requests, if more than several items, should be placed in writing to ensure that the employer is able to provide the documents to which the inspector is entitled.
  • All interviews of both hourly and management employees will be conducted off the work floor or project worksite, and all interviews conducted with supervisors or management officials will be conducted with a member of the management team present during that individual’s interview.

Prior to the start of the opening conference, local plant officials should advise either the corporate safety director or the appropriate company official at the corporate headquarters that OSHA is present at the site in order to determine if any corporate officials will be attending the OSHA inspection. In addition, the OSHA inspector may want to coordinate with all onsite contractors and vendors as part of the overall OSHA inspection.

OSHA inspections can last several hours or several months. As noted above, an employer has the right to accompany a compliance officer during the walkaround portion of the inspection. An employee representative, if any, must be committed to attend the entire inspection. It is critical during the walkaround phase of the inspection that the employer limit the area seen by the OSHA investigator to those areas of the complaint as much as possible. It should be noted that OSHA does utilize the “plain view” doctrine that allows inspectors to go to other areas of the worksite if they observe a safety or health hazard from the location in which they are allowed.

During the walkaround phase of the inspection, it is important that the OSHA inspector comply with all company safety and health rules, including training, where applicable. During the walkaround, the designated management person accompanying the OSHA inspector must take detailed and accurate notes of the areas reviewed and all discussions and comments from the compliance officer. In addition, it is important that the management officials accompanying the OSHA inspector do everything that the OSHA inspector does, including taking any and all photographs that the inspector takes, as well as doing any air or noise monitoring.

One critical factor during the walkaround is that employers should not stage the event or accident to look as it was prior to the accident. The employer must assure to the best of his or her ability that there is no destruction of evidence or any misrepresentations, even if it is inadvertent. During the inspection, the inspector may wish to perform certain air sampling and noise monitoring at the facility. Such sampling or monitoring should be allowed only when the company is able to do side-by-side sampling or monitoring. There are no exceptions to the rule requiring side-by-side sampling, no matter what the OSHA inspector may state.

Part II of “OSHA Inspections: Asserting Legal Rights While Minimizing Exposure to Citations and Penalties” will cover employee interviews and whistleblower protections and how to handle the closing conference with OSHA and possible citations.

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