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|What to Expect When You’re Inspected|
|Published Friday, March 17, 2017|
"Hello, I am an inspector from OSHA. I need to see all of your records today.”
Hearing that should not cause fear if an employer is prepared for a visit from the Occupational Safety and Health Administration (OSHA). OSHA enforces the Occupational Safety and Health Act.
In general, OSHA inspections are triggered by specific events, such as fatalities, serious accidents, employee complaints, referrals from other government agencies and follow-up inspections. OSHA initiatives such as site specific targeting programs, special emphasis programs, and compliance assistance also can prompt inspections. Rarely is an OSHA inspection random. It is essential that the employer understands the reason behind the inspection. For example, each year OSHA focuses on establishments with high rates of injury and illness. OSHA also has programs that focus on a particular safety or health hazard or particular industries.
The inspection process normally consists of five steps:
• Arrival on site;
• Opening conference;
• Inspection walkaround;
• Interviews and requests for documents; and
• Closing conference.
Arrival On Site
Senior management should be notified immediately upon the inspector’s arrival. Request credentials if the inspector is unknown. Although OSHA needs the employer’s consent or a warrant to enter the premises, forcing an inspector to obtain a warrant will likely lead to a slight delay but can also be antagonistic. The employer can thus miss the opportunity to negotiate the scope of the inspection, so it is preferable to consent on agreed terms. Finally, if no employer representative has been designated, management should immediately do so.
The contact person should insist on an opening conference and ask that appropriate company personnel participate. The purpose, scope and schedule of the inspection should be discussed. The contact person and the inspector should set the parameters of the inspection, determine the inspector’s access and discuss the potential impact of denying access to certain areas. If the visit is due to a written complaint, the contact person should request a copy of the complaint. It is important to document the opening conference in case of later challenges.
An employer should also work to limit the inspection scope. By learning the intent behind the visit, the company can determine the best way to direct the inspector’s walkaround to avoid areas the inspector has not requested to view. The purpose behind limiting the inspection scope is not to hide wrongdoing (though whatever the inspector observes in plain view is subject to citation), but rather to ensure both parties know the parameters of the inspection.
During this initial conference the contact person should discuss inspection safety and production concerns. He or she also should identify confidential and trade secret issues and photography plans, confirming that photographs of identified areas will be marked as confidential. The contact person should discuss evidence collection and, if possible, come to an arrangement with the inspector to ensure the company has copies of any information obtained during the inspection, including photographs and other evidence.
After the opening conference, the employer should ensure that a management representative, normally the contact person, is with the inspector at all times. Remember, it is difficult to challenge findings and observations if a company representative was not present. The process does not have to be adversarial. The contact person should talk about the company’s commitment to safety, recent training conducted, awards received and pertinent policies.
The management representative should be an active participant in the walkaround, taking notes on the conditions, the inspector’s comments, and any employee and management statements. Be alert for questions intended to establish liability, such as “how long have you known about it?” or “has this been a consistent issue?” If the inspector observes an alleged violation, immediately request a detailed explanation. Ask if OSHA will issue a citation, the specific standards addressed and how it will be classified. Do not be afraid to ask why the conditions are deemed a hazard or a violation. If possible, take immediate action to address or correct potential violations. If more time is needed to remedy the situation, ask for it.
Interviews and Document Requests
When the inspector conducts one-on-one interviews, the company has the right to participate in management personnel interviews. For interviews of non-management employees, it is the employee’s decision as to who is in the room. Do not force the employee to agree to a company representative being present. If a company representative is present, he or she cannot interfere, but should take notes and can ask clarifying questions and address any technical terms that inspector may not recognize). Prior to interviews, regardless whether a representative will be present, remind the employee of any safety programs and policies related to the inspection, training and certifications received and the employee’s role on site. Do not coach the employee, but understand he or she may be anxious and may not completely understand the issues and concerns being raised.
As part of the inspection, OSHA also may request company documents, such as policies and procedures, training and accident records, and employee medical records. Ask that document requests be in writing.
Accident reports, injury and illness records and other documents mandated by regulations (such as OSHA 300 logs, employee training records, and OSHA programs) need to be immediately available. But documents such as medical records, personnel records, safety audits, company policy memoranda, rules, procedures and maintenance records do not have to be immediately available. Regardless of the document requested, keep a copy of whatever is produced for OSHA and review all other records and documents for relevance, privilege and other concerns before producing them.
Insist on a closing conference. Request duplicates of samples and photographs and ask about likely citations and the basis for them.
Let the inspector know immediately of any mitigating information regarding those citations and provide support for why the citations should not be issued.
The goal during the closing conference is to correct any misinformation or misconceptions before the citation is issued. For citations, discuss and understand the abatement expectations and time lines.
The company only has 15 days to contest a citation, so contact counsel immediately to understand potential liability and rights. An OSHA inspection can be stressful, but if an employer is prepared, the uncertainly can be significantly mitigated.
Joshua Scott is an attorney with Jackson Lewis P.C. in Portsmouth. He can be reached at 603-559-2711 or KJoshua.Scott@jacksonlewis.com. For more information, visit jacksonlewis.com.
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