Suppose an Occupational Safety and Health Administration compliance safety and health officer appears at your workplace. You probably had no way of knowing he or she was coming, because OSHA inspections are unannounced. Does this unexpected news have you striding confidently toward the officer while asking what you can do to assist – or looking for a way to escape without being seen?
Federal OSHA or its approved job safety and health programs run by individual states have jurisdiction over some 8 million workplaces. Federal OSHA investigators conducted 33,401 inspections in 2019, the highest number in the last four years.
If your business has experienced a worker fatality or severe injury or illness, or if an employee or outside entity has reported workplace hazards that create imminent danger, the risk of an OSHA investigation increases exponentially.
So, it’s not outside the realm of possibility that your company could be a target. And, if it is, the risk can be enormous. It’s not uncommon to encounter six-figure penalties. Plus, OSHA citations require employers to correct any violations found during a walk-through and on their timetable. Depending on the nature of the violations, costs to make those fixes may be even higher than the fines.
Strategize in Advance
If you have wisely prepared ahead of time, however, you won’t need to fear an OSHA visit. Start by making sure your site is hazard-free by completing a Hazard Assessment. Make sure equipment is in good working order, that protective devices are present and working correctly and that workers routinely wear personal protective equipment. Provide safety training and document employees’ attendance. Maintain injury and illness logs as required by OSHA.
Consider doing regular self-inspections by walking around your facility and identifying any areas that violate OSHA requirements. By routinely conducting your own audits, you can find and correct problems before OSHA comes knocking.
With these basics in place, you can turn your attention to preparing for an inspection itself.
Should We Open the Door?
If an OSHA compliance safety and health officer (CHSO) shows up at your facility, you’re required to let him in. But you don’t have to allow an inspection to proceed until the appropriate company officials are present. As part of your preplanning strategy, anyone who might be the first to encounter a CSHO at your workplace should be trained to handle the situation respectfully, but firmly. These individuals should know which managers to alert and where to tell the CSHO to wait. An employee should remain with the inspector until company officials arrive.
Further, unless there’s an emergency or you already have consented to the walk-through, you may choose to require that the officer return with an inspection warrant. Demanding a warrant, however, may ramp up the scrutiny on your workplace. It’s usually better to permit the officer to proceed after negotiating a reasonable scope for the inspection.
After the pre-established managers are present, the CSHO is required to hold an “opening conference” to present his credentials and explain the inspection procedure. You have a right to understand whether the officer is at your site because of a compliance complaint, a report of an injury or illness or for some other reason. If a complaint has initiated the OSHA visit, the officer should provide you with a copy of the complaint. The information will not identify who made the complaint.
Take a Walk with the Inspector
Employers are entitled to – and should – accompany an OSHA representative during a walk-around inspection. If yours is a union facility, the CSHO will ask for a union official to participate in the walk-through, as well.
Restrict the inspection to the areas you have negotiated in advance. If you take the CSHO through areas besides those you agreed to show them, they are allowed to record any violations they sees in “plain view,” even if they are not part of the investigation’s planned purpose.
The inspector will take photos or videos of anything she believes is out of compliance. Company leaders who are on the walk-through should take their own photographs and videos of what the inspector records. OSHA won’t provide its photos to your business, but you have the right to examine them to make sure they don’t depict trade secrets or confidential business information.
You also should take notes during the walk around, writing down comments the CSHO makes and logging anything to which she pays particular attention. If the inspector asks questions, answer accurately and truthfully, but don’t volunteer additional information or admit that a condition or practice constitutes a violation.
What About Conversations with Employees?
The compliance officer is permitted to interview a random sampling of employees as part of the inspection. Company leaders may sit in on interviews with management employees. Non-management employees usually are interviewed in private, although some CSHOs make exceptions. If you do not sit in on employee interviews, meet with the employees afterward to determine what the OSHA representative asked about. This will help you determine where OSHA’s investigational focus may be.
As part of your preplanning strategy for an OSHA visit, designate a location where interviews would take place. Instruct all employees that they are obligated to tell the truth in an interview and that, if asked, they are never to “sign off” on the investigator’s notes.
Do We Have to Turn Over Our Records?
The CSHO may ask to review certain documents – especially those you’re required to maintain under OSHA regulations and the Occupational Health and Safety Act. Before turning over any documents, consider whether OSHA is entitled to them by law. Under OSHA regulations, you’re required to provide certain documents, such as illness and injury logs, if requested, and failing to do may constitute an additional violation.
Assuming OSHA is entitled to the documents and that the documents are relevant to the investigation, provide only those the inspector requests. Make note and retain copies of any materials you provide.
OSHA’s Final Word on Violations and Fines
After the inspection is complete, the compliance officer will hold a closing conference with your company’s leaders to review the officer’s areas of concern. The CSHO will discuss those areas of concern with their supervisor and determine if citations for violations will be issued. OSHA has up to six months from the inspection date to issue citations. If you receive citations, they will come to you by certified mail. At the time of receipt, the clock begins for your response. Factors OSHA will contemplate when levying a monetary penalty include the seriousness of the violations and the company’s size and safety history. You will have an opportunity to discuss and or contest the citation, but must these conversations and notices of contest must be made to them within 5 business days
Your response when OSHA shows up can have a large impact on the inspection’s outcome. In fact, the CSHO has an option to indicate in his or her report that a company’s leaders were uncooperative. Preparing in advance not only will help take away the fear that otherwise accompanies an unexpected OSHA investigation. It also will give you more control over the process and help reduce the risk of violations and fines.