The Occupational Safety and Health Administration (“OSHA”) enforces the Occupational Safety and Health Act (“Act”) by issuing standards for workplace health and safety, ensuring that companies comply with these standards and issuing fines to companies that do not comply. The purpose of this article is to give a preliminary outline of what to do when the OSHA inspector arrives at a company’s job site.
OSHA inspections are generally unannounced. In fact, except in four exceptional circumstances when advance notice may be given, it is a criminal offense for any person to give unauthorized advance notice of an OSHA inspection. The first notice a company generally receives of an OSHA inspection is when a Compliance Safety and Health Officer (“CSHO”), also known as a Compliance Officer (“CO”), shows up at the job site. Before this occurs, the company should designate a representative on the job site to whom all employees on the site know to refer the CSHO. Whoever the company’s representative is, he should then follow these guidelines:
Review Credentials. To insure that the person requesting to inspect the workplace is actually a CSHO authorized to inspect the site, the company’s representative should ask him to show his credentials. The credentials issued by OSHA include a photograph of the CSHO. If the company’s representative is still uncertain as to the authenticity of the CSHO, he may call the area office to verify his identity and authority before allowing the inspection to proceed.
Delay the Inspection. The company’s job site representative should delay any inspection until a company’s president, safety officer or other more fully trained representative arrives.
Request a Search Warrant. If the CSHO will not agree to wait until the company’s safety officer or other designated representative arrives, the site representative may request to see a search warrant. If a company’s representative does not consent to an inspection without a search warrant, the CSHO may not commence the site inspection until he obtains a warrant. The CSHO will not ask the company’s representatives if he wants to see a warrant. Rather, it is the company’s obligation to raise the issue. CSHO’s are instructed not to argue when a company refuses to allow them on a job site without a warrant. If the company refuses to allow the CSHO on the site without a warrant, the CSHO is supposed to report to his area director, and the area director then obtains a warrant. If a CSHO has reason in advance to believe that the company will not allow an inspection without a warrant, he may seek a pre-inspection warrant, but these instances are rare. However, if the company is confronted with such an ex parte warrant, and there is no opportunity to commence a proceeding to quash the warrant, the company’s representative should inform the CSHO that the inspection is being allowed “under protest.” A record of the protest should then be put in writing and handed to the CSHO before the inspection commences. A company should not, however, refuse an inspection if the CSHO has obtained a warrant; instead, the company should just note objections in writing.
As a practical matter, one effective way to deal with OSHA is for the company’s site representative to advise the CSHO that he has standing orders from his boss not to let anyone on the job site without the boss’ permission. The representative should very politely advise the CSHO that while he is sure his boss will allow the inspector on the property to do his job, he must first contact the boss. The representative can then advise the CSHO that he cannot get in touch with his boss until later that day, or possibly the next day, but that if the CSHO will leave his name and telephone number, a company’s representative will contact him to arrange a time later that day or the following day when the CSHO can conduct the inspection while accompanied by a company’s representative. In this manner, the company may buy time to clean up the job site without aggravating the CSHO by forcing him to go and obtain a search warrant. If the CSHO has to go to his area director to obtain a search warrant, most lawyers believe that the CSHO will find something on the job site for which to issue a citation, regardless of the site’s condition. By removing discretion from the site representative, the company does not make him the “bad guy” in the eyes of the CSHO. When the company’s safety officer or president calls the CSHO, he should apologize profusely for the on-site representative refusing the CSHO access to the job site, and he should immediately arrange for the CSHO to conduct an inspection of the now-sanitized job site while accompanied by a company’s representative. This strategy may not always work; the CSHO may merely go obtain a search warrant when denied immediate access to the job site. However, even if he does, the company at least knows an inspection will be forthcoming in the near future and can prepare accordingly. The strategy affords the benefits of delaying the inspection until a trained company representative can accompany the CSHO and may avoid the detriment concurrent with requiring the OSHA inspector to obtain a warrant.
Opening Conference. Once the inspection is to proceed, it should commence with an opening conference. The CSHO will ask the company if an employees’ representative may participate in the opening conference. The employee representative may be either (1) a union representative if a union represents employees, (2) an employee member of any safety and health committee if one exists, or (3) an individual employee who is selected as the employees’ representative. At the opening conference, the CSHO should inform the company’s representative of the reason for the inspection and the procedures to be followed during the actual physical inspection. Following the opening conference, the CSHO may inspect the records OSHA requires companies to maintain.
Accompany the Inspector During The Walkaround. The Act provides that a company’s and the employees’ representative “shall be given” an opportunity to accompany the inspection tour for the purpose of aiding the inspection. During the so-called “walkaround” inspection, the CSHO will make notes, take photographs, interview employees and conduct whatever tests necessary to determine whether the workplace is in compliance with the General Duty Clause of the Act and the applicable safety and health standards. The company’s representative should also take notes, photograph any items the inspector photographs and note every violation the inspector notes.
The company’s representative should never volunteer any information during an inspection or admit to any violation. Anything the company’s representative says during a walkaround can be used against the company. However, the company’s representative should, if possible, immediately correct all violations noted by the inspector and be sure the inspector records that the alleged violation was corrected on the spot. The representative accompanying the inspector should be polite and try to work with the inspector rather than against him.
The Act allows the CSHO to question privately any company, owner, operator, agent, or employee during the walkaround inspection, although some companies have refused to permit private employee interviews during work time and courts have upheld this action. Because the law is unsettled in this area, so companies try to direct employees not to answer an inspector’s questions during work time, although this may aggravate the inspector. Walkaround rights are waived by companies that fail to have a representative accompany the inspector, so companies should always have some trained individual accompany the OSHA inspector during the walkaround.
Closing Conference. Following the walkaround, there will be a closing conference. The CSHO will generally ask the employees’ representative to be present for the closing conference. However, the company can insist upon a separate closing conference. At the closing conference the company’s representative should go over every item for which the company has been cited, and check the item against the standard. He should ask the inspector to give a complete explanation of the citation if it is not absolutely clear. Should the company’s representative disagree with the inspector’s position, he should politely but firmly point out the reasons he disagrees.
If the inspector issues a citation, the company has a right to protest the citation to the area director. The area director may cancel or amend a citation and the penalty during the informal conference with the area director. If the company disagrees with the area director’s decision, appeals may be taken to the Solicitor of Labor’s Office of the U.S. Department of Labor and, ultimately, through the federal courts. By understanding these rights and methods of responding to an inspection, a company may eliminate or reduce its risk of receiving citations.