With a plethora of investigative agencies that may show up at your company’s door, it is important to understand the purpose of a visit from OSHA. It equally is important for employers to take action during the course of the inspection to place themselves in a favorable legal position.
Because OSHA inspections are unannounced, a company should preplan its strategy in the event of an inspection. The federal government looks at OSHA penalties not only as a deterrant, but also as a source of revenue enhancement, so six-figure penalties are not uncommon. In addition, OSHA citations require that employers “abate” violations, and corrective action may, in some cases, be more expensive than the actual penalties.
(Note: The OSH Act allows states to elect to assume responsibility for the administration and enforcement of occupational safety and health regulations within the state. In order to establish a “state plan,” the state must demonstrate that its regulations and enforcement will be “at least as effective” as the worker protection provided by federal law. Approximately half of all states have exercised the right to submit and obtain approval of state plans. Although this article is geared toward federal OSHA, many federal procedures are similar to those in the various states.)
When a Complaint is Received
In an effort to reduce their caseload and expedite inspections, many local OSHA offices evaluate each incoming complaint to determine the potential risk to employee safety. For low-risk complaints, the OSHA office calls the employer to notify it of the complaint and then follows up with a letter requesting a response within 10 days. Employers should provide a thorough response in a timely manner, as well as evidence of compliance or correction such as photographs, invoices for the purchase of safety equipment or proof of employee training. The employer’s response letter closes virtually all of the phone and fax cases.
If the phone and fax procedures are not being used by a particular OSHA region or state, or if OSHA determines the particular situation warrants more action, the OSHA area office or state may send a complaint letter. The procedure operates much the same as the phone/fax method, except employers are notified by letter instead of by phone. The employer should respond in the same manner as for the phone/fax procedure.
Sometimes, though, OSHA chooses to reach out and touch an employer.
If an Inspector Knocks
The OSHA Field Inspection Reference Manual (FIRM) outlines the majority of inspection duties of federal OSHA inspectors or compliance officers. Many states also have manuals that guide the inspection process. Compliance officers are required to begin inspections with an “opening conference,” presenting credentials and explaining the inspection procedure. If an OSHA inspector shows up at your door, you should consider the following:
1) Restrict admittance until management personnel are on site. Never allow the opening conference or the inspection process to commence until the appropriate pre-established management persons are present. Establish procedures for receptionists and facility guards in the event a compliance officer appears on site.
2) Determine the reason for the inspection. Is it a complaint-based inspection, fatality-based inspection, targeted inspection (government focus on specific industries), media-based inspection (from a press report of a fire, explosion, incident, etc.) or random inspection?
3) Obtain a copy of the complaint. Most inspections are the result of employee complaints. The compliance officer or inspector should provide the employer with a copy of the specific complaint(s). The employee’s name will not appear on the document. Do not comment about the reason for the complaint or about the party who may have made the complaint. Employees who have registered safety complaints or instituted any proceeding under the OSH Act are protected from discrimination or retaliation by their employer.
4) Distinguish whether the inspection is related to safety or industrial hygiene. If the OSHA officer is a safety specialist or compliance officer, the inspector will not conduct hygiene samplings. If the inspector is an industrial hygienist, it is likely that the inspection will focus on industrial hygiene issues such as noise monitoring, air sampling, etc. If possible, perform simultaneous sampling to verify OSHA results.
5) Identify whistleblower protection inspections. Certain OSHA inspectors in each area office are assigned to conduct investigations into complaints of alleged discrimination and retaliation against employees as a result of safety-related complaints. These investigations generally do not involve any physical inspection of the plant.
6) Designate an employee representative. OSHA inspectors are required to ask for the participation of an employee representative. If the plant is organized, the union safety chairman, shop steward or other union official will be asked to participate. If the facility is not organized, the employer may choose to have an employee representative participate if there is an employee safety committee.
7) Limit the scope of an inspection. Define the areas that the inspector will need to see and confine the visit to those areas or departments. Under no circumstances should you offer a plant tour. OSHA inspectors can cite any violations they see in “plain view,” regardless of the purpose of the inspection. For most inspections, escort the compliance officer to the targeted area(s) via a route where he or she is least likely to notice safety violations, even if that route involves walking outdoors.
8) Maintain records. Inspectors will routinely review the current and prior 3 years’ illness logs and annual summaries of injuries. They will check to ensure the OSHA poster is in place, as well as for the following programs: hazard communication, lockout/tagout, emergency evacuation and bloodborne pathogens.
9) Take photographs and videos. OSHA inspectors are instructed to take photographs or create videos or DVDs to document safety violations. Most employers allow photographs unless there is a trade secret or security issue. Companies should have cameras available and should take photographs, videos or DVDs of the same items as OSHA.
10) Debrief employees following interviews. OSHA will ask to conduct employee interviews in private during the inspection. Company representatives may be present in any interviews with management employees (generally foreman through plant manager). You should “debrief” hourly employees after their OSHA interviews in an effort to determine the scope of the questioning. This also enables you to prepare other employees prior to their OSHA interviews. The extent to which an employer prepares and debriefs employees will vary depending upon the culture of the workplace.
11) Protect trade secrets. OSHA is required to protect the confidentiality of any items which are asserted to be trade secrets. Verification of trade secrets should be done at the opening conference, and a follow-up letter asserting the trade secret nature of the processes or workplace should be sent to the OSHA area director.
12) Demand search warrants. An employer has the right to refuse to allow an inspection without the presentation of a search warrant. Request for a warrant will buy time before OSHA returns to conduct the inspection, but OSHA will obtain a warrant prior to any subsequent inspections.
The Inspection Walk-Around
During the OSHA inspector’s walk-around, you should stay with the inspector and accompany him or her at all times with as few personnel as possible.
Do not volunteer information. Take notes on all observations an inspector makes, particularly departments or equipment inspected, approximate times spent in various areas and the individuals who were interviewed.
OSHA compliance officers are authorized to review relevant employer records during inspections. Relevant records include those required to be kept by the employer under the OSHA Act and OSHA standards or regulations. Provide only those records specifically requested (e.g., crane inspection reports). Compliance officers generally agree to accept requested records by mail after the on-site visit.
If OSHA requests a copy of a record or document, make additional copies to keep with your OSHA inspection file. Keep a record of the documents provided to or reviewed by the inspector. Duplicate all pictures that OSHA takes and if OSHA takes a picture of an isolated violation, take pictures of similar areas which show no violation.
Repair any small violations immediately (fix a broken handrail, readjust grinding wheel work rest, etc.). This demonstrates good faith and may prevent a citation.
During an industrial hygiene inspection, determine what tests or monitoring OSHA plans to conduct. Find out OSHA’s intended test procedures – the number of individuals to be tested, duration of test, type of equipment being used and chemicals being sampled. Consider simultaneous testing by plant safety personnel or through an outside consultant.
OSHA industrial hygiene inspectors usually are willing to defer sampling for a short period of time if the employer wants to conduct simultaneous testing. Be aware of any unusual production problems or weather conditions that may affect the outcome of industrial hygiene tests.
The Closing Conference
OSHA inspectors are required to conduct a closing conference that immediately may follow after a very simple inspection or may follow a major inspection by several weeks. Industrial hygiene inspection closing conferences generally are delayed because of the need to obtain test results.
The closing conference is an opportunity to promote the company’s safety programs and commitment to safety and health. This is a factor OSHA considers in establishing penalty amounts. Be a good listener and take notes on all of the specific alleged violations identified by the compliance officer.
You may be asked to establish timelines for correcting alleged violations. Be cautious in setting dates and allow ample time. You should point out any obvious mistakes of fact or disputed issues with respect to the allegations, but do not argue with the inspector.
For industrial hygiene inspections, ask for a copy of specific test results and findings. Citations may be issued for items which were not identified at closing and at times items under discussion will not be cited. OSHA has 6 months from the date of its first notice of the alleged violation to issue a citation.
After Citations are Received
Most citation items are for alleged violations of specific OSHA standards. However, the general duty clause, Section 5(a)(1), requires that every employer furnish to each employee “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The clause covers “serious” hazards for which no specific standard applies. Therefore, if a specific standard applies, a general duty citation is inappropriate. OSHA also has the authority to impose criminal penalties. The most common classifications are:
- Other – Lowest OSHA classification, defined as not likely to cause serious injury. The maximum penalty is $7,000; most “other” penalties are either zero or a few hundred dollars.
- Serious – Most common form of citation and classified as any condition that may cause serious physical harm, but this is broadly defined by OSHA. This essentially is the same definition as the “general duty” clause. The maximum penalty maximum is $7,000. Under OSHA penalty calculation guidelines, virtually every serious penalty will exceed $1,000.
- Repeat – Any violation of the same standard within 3 years of a final order of a previous citation, or within 3 years of the final abatement date of the citation, whichever is later. The violations must be “substantially similar” to be considered to be “repeated.” The maximum penalty for a repeat or willful violation is $70,000.
- Willful – Not necessarily an intentional flaunting of regulations. This may mean an employer is found to knowingly commit non-compliance while understanding OSHA requirements.
OSHA will consider certain factors such as the gravity of the violation, the size of the business, the company’s history of violations and the company’s good faith in its dealings with OSHA when calculating penalty amounts.
Abatement dates for alleged violations either will be immediate (i.e., immediately upon receipt of the citation) or OSHA will specify a future date.
The Employer’s Options
An employer receiving notice of citations from OSHA has several available options.
Employers may request an informal conference with the area director within 15 working days of the receipt of citation. Attorneys sometimes participate, but it is not necessary. If the company employees are represented, the union will be invited by OSHA to participate.
There are advantages to an informal conference, including possible penalty reduction, possible extension of abatement dates, possible deletion and/or reclassification of citations, discovery of more facts to ascertain whether to contest the citation and the opportunity to create open communication with the area director.
OSHA expects the employer to make the presentation. Time is limited, so employers should focus only on items where there is a controversy. Point out facts in dispute or interpretive questions. Employers should conclude by stating exactly what form of relief they want.
The area director may propose amendment to citations and likely will ask for the employer to sign a preprinted settlement agreement. Employers can negotiate with OSHA and make counterproposals. Informal conference settlement agreements must be posted in the facility. A non-admission clause should be included in any settlement agreement to indicate that the employer does not admit to any violations or wrongdoing under the OSH Act.
If an informal settlement is not reached, employers must file a Notice of Contest within 15 working days from date of receipt. There are no exceptions to this requirement. There is no specified form and a simple letter generally is used. Refer to the date and OSHA identification number of the citation and list the specific items, penalties and abatement dates being contested. When in doubt, employers should file a Notice of Contest as it can be withdrawn at any time.
Employees have the right to participate in a contested OSHA case. The employer must post the Notice of Contest on a company bulletin board and must subsequently post a notice to employees advising them of their right to participate in the OSHA process.
Once an OSHA case is contested, it is assigned to an Administrative Law Judge from the Occupational Safety and Health Review Commission. An attorney from the solicitor’s office of the U.S. Department of Labor will act as prosecutor. Companies will require legal representation to participate in this administrative proceeding.
A complaint will be filed by the Solicitor and an answer filed by the company’s counsel. Eventually, the case will be set for hearing before the Administrative Law Judge. Many OSHA cases are settled prior to formal hearings, but the agreement must be approved by the Administrative Law Judge. Although infrequent, highly contested cases may be appealed to court.
Patricia A. Poole is a partner with Baker Hostetler, and concentrates her legal practice in the area of employment litigation, including occupational safety and health, workers' compensation, employment intentional tort and emergency response. She has significant experience assisting employers in the aftermath of workplace catastrophes including plant explosions, fires and chemical spills. Poole practiced as a registered nurse in the field of medical oncology before joining Baker Hostetler.
Sidebar: When an Inspector Shows up at Your Door
- Restrict admittance until management personnel are on site.
- Determine the reason for the inspection.
- Obtain a copy of the complaint.
- Distinguish whether the inspection is related to safety or industrial hygiene.
- Identify whistleblower protection inspections.
- Designate an employee representative.
- Limit the scope of an inspection if possible.
- Have injury and illness logs ready for review.
- Take the same photographs and videos as the OSHA inspector.
- Have company representatives present during interviews with management employees and debrief other employees following OSHA interviews.
- Verify trade secrets during the opening conference.
- Remember your right to refuse to allow an inspection without a search warrant.