Being prepared to handle an OSHA inspection or investigation properly minimizes the employer’s exposure to liability and eliminates unnecessary anxiety surrounding the inspection. Inspections or investigations can be triggered by:

• Target inspections (especially for industries designated for special emphasis programs);
• Employee complaints;
• Claim of imminent danger where there has been a fatality; and
• Where three or more employees are hospitalized as a result of an accident or illness.

If you ask, the OSHA compliance officer generally will tell you why he or she is there. If the inspection was triggered by an employee complaint, the company is entitled to an explanation as to the reason for the inspection and can ask for a copy of the complaint.

Direct the OSHA compliance officer to the company’s designated safety officer prior to the opening conference. The safety director should obtain the compliance officer’s credentials and his or her business card with an address and phone number to ensure that the compliance officer is on an official inspection. The opening conference should begin at this point.

If the company is a union shop, the compliance officer will probably request that a union representative be present at the conference to report any employee concerns and will ask the union representative to accompany him or her in the inspection “walk-around.”

The company should say as little as possible. The compliance officer will not only seek general information, but also may seek specific admissions concerning an employer’s knowledge of unsafe conditions. Be helpful and courteous, but watch out for questions designed to elicit knowledge of uncorrected hazards. Don’t volunteer information.

Show the OSHA inspector the company’s commitment to its safety statement, but be aware that OSHA does not like employee safety incentive programs. The existence of an incentive program may bias the inspector against the company. OSHA’s view is that the effect of safety incentive programs is under-reporting of injuries and illnesses.

Generally, the compliance officer can examine records that an employer is required to maintain under the Act, such as the log and summary of occupational illnesses and injuries (OSHA 200 Log), the supplemental record of occupational illnesses and injuries, and Material Safety Date Sheets.

The company is required to keep its logs of injuries and illnesses on file for the specified period (5 years), but the safety manager should not volunteer logs unless they are specifically requested by the inspector. Information contained in these logs may cause the inspector to conduct additional employee interviews and lead to a stricter examination of the company’s safety training programs.

However, management should be ready to produce records concerning compliance programs required by specific OSHA standards. Examples include:

• Lockout/Tagout procedures
• Confined space protocols
• Bloodborne pathogens containment
• Evacuation plans for fire, flood, explosion
• Hazard communications

Other records, such as accident reports, insurance company studies, and employee medical records should not be given to the compliance officer without the proper request procedures being followed. Employee medical records should be obtained by OSHA in compliance with a medical access order. The order must be posted so that the employee has a chance to object to the release of the records.

The next phase of the inspection is the walk-around. The company’s designated walk-around representative should be the facility’s safety officer, who should stay with the OSHA compliance officer at all times. If possible, two employer representatives should also be present to take detailed notes and/or photographs or videos if necessary.

The OSHA compliance officer is limited to the areas identified in the complaint or warrant, together with those areas consented to by the employer. The inspection may be expanded based on records or additional information obtained from a previous “limited” inspection. It is important that the inspection be of only the appropriate areas, but a violation in plain view can be cited and may expand the scope of the inspection. The employer representatives should say as little as possible during the inspection Any comments may be used against the employer in later citation proceedings and may compromise defenses available to the employer.

• The employer should take certain proactive steps during the walk-around inspection. Be sure to:
• Take detailed notes of all comments and questions asked by the OSHA compliance officer;
• Take photographs, videotapes/audiotapes and measurements of inspected work areas and machinery to correspond to the photographs, videotapes and measurements taken by the compliance officer; and
• Make note of the names of any employees interviewed by the compliance officer.

The employer must not take any action against an employee who interviews or cooperates with the OSHA compliance officer. Retaliation carries extremely heavy penalties under federal and state law. 

The company representatives should advise the OSHA compliance officer in advance of any concerns the company has regarding possible trade secrets and other proprietary information.  The authority of the OSHA compliance officer is limited.  For example, the compliance officer:

• must conduct employee interviews within “reasonable” limits and in a “reasonable” manner
• may not conduct private employee interviews on employer’s premises unless the employer consents
• is not allowed to view employee medical records without the proper request order, but is allowed to determine if the records are being maintained
• should not enter restricted/posted areas unless proper precautions are taken
• must wear required protective equipment such as goggles, hard hats, gloves and earplugs
• may not take photographs if the flash would produce a hazard or disrupt the work area
• may not cause an unreasonable disruption or interference with operations.

After the walk-around, the compliance officer will conduct a closing conference. He or she will describe any “apparent violations” to the company’s representatives and explain the company’s rights and responsibilities. The compliance officer may ask how much time is needed to abate the “apparent violation.” An affirmative response to this question may be deemed an admission of a violation and could subject the company to a heavier fine. Preface any response with: “If a violation exists . . .”

If an apparent violation cannot be contested in good faith, the company should try to abate it during the inspection. This could result in a reduced penalty. Take detailed notes on problems addressed by the compliance officer (with the applicable standards) and the suggested abatement procedures.

At the closing conference, verbally confirm the scope of the inspection as stated in the opening conference, and send a follow-up letter to the compliance officer confirming the scope of the inspection.

Any citation must be issued within six months of the start of the inspection, but are usually issued within a few weeks. There are strict time limits (15 days) within which a company may contest the citation. The company’s mail room must be alerted that a letter from OSHA is expected and instructed to give it to the designated company representative immediately upon receipt.

If you are issued a citation, it should be posted (with penalty amounts deleted) in the area cited, as well as where company notices normally are posted. Notify the company’s OSHA counsel immediately. The company may want to request an informal conference with the OSHA area director, depending on how the nature of the violations, the penalty classification, whether abatement is feasible, and the cost of abatement. The informal conference may or may not result in an informal settlement, but the request for an informal conference does not extend the time for the filing of a notice of contest.

For more information on this and other safety compliance issues visit the OSHA website at www.osha.gov or call Omer Causey at 941-366-7550.

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