When OSHA Knocks: Part I

Note: This article is Part I of a two-part series

With a plethora of investigative agencies that can show up at an employer’s door, it is imperative to understand the purpose of an OSHA visit. Equally critical is the need for employers to proactively set themselves up for a favorable outcome. Because OSHA inspections are unannounced, organizations should preplan their strategy in the event of an inspection. The federal government views OSHA penalties not only as a deterrent, 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 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. Check here to see if your location has a “state plan” in place.

HOW OSHA RESPONDS TO COMPLAINTS

Phone/Fax Cases: In an effort to reduce their caseload and to 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 notifies the employer of the complaint by phone call, following up with a fax or letter requesting a response within 10 days. Employers should provide a thorough response in a timely manner, along with evidence of compliance or correction including photographs, invoices for the purchase of safety equipment, or proof of employee training. An employer response letter closes virtually all phone and fax cases.

Complaint Letter: 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 the 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.

On-Site Inspection: Sometimes, though, OSHA chooses to conduct an on-site inspection. The OSHA Field Inspection Reference Manual (FIRM) outlines most inspection duties of federal OSHA inspectors or compliance officers. Compliance officers must begin inspections with an “opening conference,” presenting credentials and explaining the inspection procedure.

BE PROACTIVE

Here’s how to prepare for the possibility of an on-site visit by an OSHA Inspector:

Restrict admittance until designated a designated leader is on site. Never allow the opening conference or the inspection process to commence until the appropriate pre-established management staff are present. Establish procedures for receptionists and/or facility guards in the event a compliance officer appears on site. It’s best to demonstrate welcoming behavior as you would to any guest or visitor and to designate a comfortable location for the OSHA Inspector to wait for management staff to arrive onsite.

Determine the reason for the inspection. Is the inspection complaint-based, fatality-based, targeted inspection (government focus on specific industries), media-based (from a press report of a fire, explosion, incident, etc.), or random?

Obtain a copy of the complaint. Most inspections arise from 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 employers.

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, simultaneously perform your own sampling to verify OSHA results.

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 that result from safety-related complaints. These investigations generally do not involve any physical inspection of the organization premises.

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.

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 comprehensive 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.

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, along with other required postings and documentation.

Take photographs and videos. OSHA inspectors are instructed to take photographs or video 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 and/or videos of the same items as OSHA.

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.

Protect trade secrets. OSHA is required to protect the confidentiality of any items which are asserted to be trade secrets. The employer should verify trade secrets with OSHA at the opening conference and send a follow-up letter to the OSHA area director asserting the trade secret nature of the processes or workplace.

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 will also likely result in an adversarial start to the inspection which could make things more difficult.  OSHA will obtain a warrant prior to any subsequent inspections.

THE INSPECTION

During the OSHA inspector’s walk-around, you should stay with the inspector, accompanying 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 OSH Act and OSHA standards or regulations. Provide only those records requested. 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.

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 safety personnel or through an outside consultant. In such a case, OSHA industrial hygiene inspectors usually are willing to defer sampling for a short period of time. Be aware of any unusual production problems or weather conditions that might affect the outcome of industrial hygiene tests.

CONCLUSION

Being prepared for an OSHA inspection is the best way to ensure a successful outcome for your business. “When OSHA Knocks – Part II, will cover what to do when the inspection is over, including tips on handling the Closing Conference, the types of possible OSHA citations, potential penalties, and employer options for contesting outcomes.

 

Karen Lazowski, Senior Consultant at OMNI Human Resource Management, provides comprehensive HR supports to select outsourcing clients, bringing over 20 years of experience in HR leadership, with an emphasis on start-ups and fast growth companies. Ms. Lazowski’s background includes 13 years as Executive Director, HR Services, at Applebee’s International and Director of Training & Organizational Development at Gentiva Health Services. Karen attended the Executive Leadership Program at Northwestern University’s Kellogg School of Management.

Jennifer Gross-Statler, Marketing & Communications Manager, comes to OMNI with 20-plus years’ experience as a nonprofit executive and brings valuable expertise in community and media relations, marketing and branding, project management, and strategic planning.