Practice and Procedure in an OSHA Inspection

The increasing emphasis on workplace safety virtually ensures that most employers will face some kind of OSHA inspection, investigation or inquiry. Moreover, civil and sometimes criminal penalties which may result from an inspection can be significant. The purpose of this article is to make you aware of your rights, give you an understanding of the scope of OSHA's investigative authority and allow for some planning that can help you -- and your company -- effectively deal with the OSHA inspection.

All businesses have an incentive to comply with OSHA rules especially where its failure to do so may have adverse consequences. First, if there is a failure to comply, federal regulators may monitor a company for future violations more closely or might increase subsequent penalties after a violation is found. In addition, a firm may often obey safety and health regulations in order to reduce the potential for accidents or illnesses that raise the firm's costs.  In any event, it is just good business to comply with standards which can easily be met.

Criminal penalties are seldom imposed in OSHA matters. A company acts criminally if its willful violation of an OSHA standard causes an employee's death. Only corporate officers are subject to a criminal penalty; thus, lower level managers who may have been directly responsible for a workplace fatality are exempt. Moreover, OSHA criminal violations, if they are prosecuted at all, are misdemeanors, not felonies.

Inspection

Inspections are usually conducted without advance notice. In fact, anyone alerting an employer without proper authorization in advance of an OSHA inspection can result in a fine and possibly a jail sentence. There are some special circumstances under which OSHA may give notice to the employer; usually, such notice normally will be less than 24 hours. These special circumstances would include imminent danger situations that require correction as soon as possible; inspections that must take place after regular business hours or require special preparation; and other situations in which the OSHA Area Director determines that advance notice would produce a more thorough or effective inspection.

OSHA inspections generally are characterized as programmed or unprogrammed. Programmed inspections are scheduled and inspection sites are selected based upon neutral and objective criteria. Programmed inspection typically target specific high-hazard industries, occupations or health substances. Industries are selected for a programmed inspection based on a variety of factors including incident rates, citation history, employee exposure to toxic substances, etc.

Unprogrammed inspections usually are triggered by employee complaints of alleged violations or of unsafe working conditions. OSHA may also conduct an unprogrammed follow-up investigation to determine whether previously cited violations have been corrected. Because the correction of hazardous working conditions is OSHA's primary goal, unprogrammed inspections generally take precedence over programmed ones.

THE STAGES OF AN OSHA INSPECTION

An OSHA inspection, whether programmed or unprogrammed, consists of three stages:

1. Opening Conference;
2. Walkaround or Full Company Inspection, Document Review and Employee Interviews; and
3. Closing Conference.

1.   Opening Conference

The Opening Conference is a forum for addressing preliminary administrative matters and also provides the employer and the OSHA inspectors an opportunity to discuss various aspects of the investigation. Always conduct an Opening Conference. A member of management familiar with the Hazard Communication Standard and other OSHA regulations should represent management during the inspections.

First, ask to see the OSHA inspector's credentials. The inspector expects this request and usually will voluntarily produce his credentials upon arrival at the workplace.  In confirming the inspector's credentials, please record all identifying data in a cordial, yet business-like manner.

Can you refuse to allow the OSHA inspectors to enter upon your premises? Answer: Yes. An employer may refuse entry to OSHA inspectors by requiring that OSHA obtain a search warrant to enter and inspect the property. It should be noted that OSHA is not required to show probable cause that a violation has occurred in order to obtain a warrant.  OSHA essentially has to provide only a reasonable basis for believing that a violation is likely to be found or this is part of a routine inspection pursuant to the statutory scheme. In most cases, OSHA will be able to obtain a warrant.

Should you demand that OSHA get a search warrant? It depends. Requesting a warrant will result in some delay and will provide the employer with extra time to prepare. The reason for getting a warrant is that the warrant will limit the scope of the inspection. For example, if the warrant does not specify photographs, air sampling and similar matters, the company could object to OSHA taking photographs and samples. In any event, the decision of whether the company desires to object to a warrantless inspection should be discussed well beforehand as part of the company's overall plan. On the other hand, requesting a warrant may alienate the inspector and create a less reasonable environment for the inspection. Some experts contend that employers who demand a warrant are likely to receive as many as twice as many citations for alleged violations and be assessed higher fines than those employers who do not require a warrant. Accordingly, absent strong overriding concerns about the motivation of the inspection, employers generally are better served by cooperating without requiring a warrant.

Who attends this Opening Conference? The ranking member of management at the facility (on-site that day) will be required to attend and the company's attorney may attend. An additional company representative should be there to take notes. An authorized employee representative also is given the opportunity to attend the opening conference and to accompany the Compliance Officer during the inspection. If there is a plant safety committee, the employee members of the committee will designate which representative will attend an OSHA inspection. When there is no plant safety committee, the Compliance Officer may determine if any employee suitably represents the interest of other employees. The Act does not require that there be an employee representative for each inspection. However, where there is no authorized employee representative, the Compliance Officer must consult with a reasonable number of employees concerning safety and health matters in the work place.

During the Opening Conference, the inspector will state the basis and scope of the inspection.  The company coordinator should inquire as to why OSHA has chosen the facility for inspection. Is the inspection in response to a complaint or a reportable accident or incident? Is it a scheduled or programmed inspection? If there was a complaint, the employer should obtain a copy of the complaint. If this is a scheduled or programmed inspection, the inspector will explain the schedule or program and how the facility was selected for inspection. At that point, the coordinator should ask for a timetable from the inspector regarding when OSHA anticipates responding to the employer with the results of the inspection.

The OSHA inspector will disclose whether this is a comprehensive inspection or a partial inspection. A comprehensive inspection is a substantially complete inspection of all of the high-hazard areas of the establishment. On the other hand, a partial inspection focuses only on particular potentially hazardous areas, operations, conditions or practices at the establishment.

Use the Opening Conference to make a good impression. Explain the company's Hazard Communication Standard program to the inspector.  Then, the inspector usually will ask to see a written report. The written program should describe the requirements for labeling and other forms of warnings, material safety data sheets (MSDSs) and employee information and training. The company should place strong emphasis on its continuing attention to safety, the providing of information and training to employees, and the availability of material safety data sheets.

2.   The Second Stage

The OSHA inspector's first order of business after the Opening Conference is usually to inspect injury records, including the OSHA 200 log and required OSHA written programs. If this company maintains a medical department at the facility, OSHA also may request employee medical records. Remember, because of the employees' privacy interests, medical records should not be produced without the written consent of the employee. While the inspector is conducting the records review, an alternate management coordinator can notify plant supervisors that the inspector is at the facility. The inspector should be put into a separate room to review the records. Specific records requested should be brought to him. The inspector should not be allowed to rummage through file cabinets, personnel or medical records or other materials. After the records review, the inspector will want to make a physical inspection of the plant.

The inspector will focus generally on the subject areas in the complaint or a specific hazard but has the discretion to do a complete plant inspection. The coordinator, that is the person from your company, has the right to accompany the inspector during the tour of the facility and to stay with him at all times. It is prudent to include a manager or another employee who is knowledgeable about the specific conditions concerning which the inspector has expressed interest and who has a working knowledge of the applicable OSHA regulations.

Because the information gathered during the plant inspection may be used to support any resulting citations, careful notes should be taken during the inspection by the company's coordinator. The company employee should note and record the locations visited and note the equipment and areas of interest to the inspector. If the inspector takes photographs, the employer should do the same. The company should make sure that all photographs are labeled as trade secrets if the processes or areas constitute proprietary information. If the inspector takes a sample, the employer should do the same.

Be careful as to the documents and things the inspector takes from the plant. Because OSHA's files are subject to public access under the Freedom of Information Act, anything produced to the inspector could be released to a requesting party. There are, however, procedures for protecting and withholding information that the employer has classified as confidential or trade secrets. So, make sure you keep track of what documents the inspector retained, not just those he looked at, by using a document log to track which documents were requested, reviewed and produced. Anything that is marked as confidential or as a trade secret should be explained to the inspector and he should mark his files accordingly. There are provisions to notify the agency in writing of these confidential trade secrets and claim a Freedom of Information Act exemption, but talk to Pedersen & Houpt about that.

The Compliance Officer will also explain the requirements of the Hazard Communication Standard. Under that rule, employers must establish a written comprehensive communication program that includes provisions for container labeling, material safety data sheets and an employee training program. The program must contain a list of the hazardous chemicals in each work area and the means the employer will use to inform employees of hazards of non-routine tasks.

What are the matters that the inspectors will be looking for? Regarding labeling, the information provided should:

A. Identify the person responsible for labeling of in-plant containments; B. Identify the person responsible for labeling of any shipping containers; and C. Describe the labeling systems used

To ensure current MSDSs (Material Safety Data Sheets) are available for each chemical in the plant, the written program should include the following:

A. The identity of the person responsible for obtaining and maintaining the MSDSs; B. Procedures for maintaining MSDSs in the workplace; and C. Steps to follow when an MSDS is not received.

For purposes of any and all company training programs, the inspectors will look for the following:

A. The identity of the person responsible for conducting training; B. The training program; and C. Methods followed in training employees and new hires.

We now come to the area of employee interviews. The inspector is likely to request interviews with supervisory and non-supervisory personnel. Supervisory personnel are those who make hiring and firing decisions or who make recommendations concerning hiring and firing. Statements made by supervisory personnel will bind the employer. As a result, an employer is entitled to have a representative (the company lawyer or a manager) present during the interview. As a general rule, no supervisor or member of management should talk to the inspector and the employer is not required to demonstrate the operation of equipment or machinery. Therefore, generally, supervisors should not explain how anything works because the explanation may become an admission of wrongdoing by the company. As in all cases, consult Pedersen & Houpt on all of these issues.

Unlike statements made by supervisory personnel, statements made by non-supervisory personnel do not bind the company. Accordingly, the employer does not have an absolute right to have his or her representative present during the interviews.

If a private interview with an employee is scheduled, the employer should inform the employee in advance of his or her rights: that he or she is not required by law to sign a statement and that, if the inspector prepares a statement for signature, then the employee has the right to read it very carefully before signing to ensure accuracy and has the right to request a copy. If possible, the company lawyer should meet with the employee immediately after the interview to review what was discussed. In any event, the final decision is the employee's.

In the course of a full plant inspection, if there are any necessary repairs to be made, the employer should have a maintenance worker available to immediately make those repairs. The coordinator needs to make sure that the inspector notes in his report that such repairs were made. It is to be noted that under current enforcement mechanisms, OSHA inspectors have the discretion not to cite certain hazards that are corrected on the spot. 

3.   Closing Conference

Finally, the compliance officer will conduct a Closing Conference with the employer.

All unsafe conditions observed will be discussed and a proposed penalty may be issued or recommended. During the Closing Conference, the employer may wish to produce records to show compliance efforts and to provide information that can help OSHA determine how much time may be needed to abate an alleged violation. To keep OSHA from setting an unreasonably short abatement period, yet without admitting any violation, it is a good practice to estimate the time for corrective action. In order to have a valid citation, OSHA must show both the violation and feasibility of abatement.

OSHA must complete its inspection and issue formal citations, if any, within six months of the inspection. If a citation is issued, it must be promptly posted at the facility. In order to contest the penalty, the company must give written notice to the OSHA Area Director that it intends to contest all or part of the citation within 15 working days. The company may also request an informal conference with OSHA to discuss the proposed penalty. But, the request for an informal conference does not interrupt the period for filing a timely notice of contest.

Arthur M. Holtzman is a partner of the Litigation and Dispute Resolution Practice Group at Pedersen & Houpt.  He can be reached at 312 261 2111.

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