Sooner or later, your facility will be the subject of an inspection by the Occupational Safety and Health Administration (“OSHA”). OSHA usually does not provide any advance notice of these inspections (which always seem to occur at the “wrong” time). Nevertheless, how facility representatives handle themselves can directly influence the severity of the outcome of the inspection.
To help you improve your company’s chances of a favorable outcome, basic procedures and rules must be carefully followed. Safety Officers and Plant Managers can and should be prepared for these inspections and must be able to quickly and easily implement a well-practiced and automatic response at the time. Time spent in preparation of these visits will ensure that the facility is exhibited in its most favorable light. This will minimize both the time the Inspector spends at the facility as well as the severity of any penalty assessment.
Your OSHA inspection response/action plan should take into account the following elements:
Notify the Safety Representative Immediately – Prepare the receptionist, security guard or whoever greets visitors at your facility well in advance of an unannounced visit by the OSHA Compliance Safety & Health Officer (the “Inspector”). Instruct this person to be professional, courteous and quiet and to access a previously prepared list of company representatives who can act as the liaison to the Inspector. A company representative (and at least one alternate in case the primary representative is not available) should be designated to act as the liaison. The ideal person will be knowledgeable about plant operations, environmental health and safety issues, your industries most often cited OSHA violations and your facility’s OSHA log entries.
Your representative should also have a detailed and thorough understanding of the facility’s past OSHA compliance record (as well as the records of sister facilities). The Inspector should be asked to wait until the company representative has been located and can meet with the Inspector. In most cases, the Inspector understands this and will wait patiently until the appropriate personnel is located and presented. Take this opportunity to notify senior management.
Check Credentials – Request Warrant – Prior to undertaking the inspection, the Inspector will identify himself or herself with the appropriate federal identification. Carefully examine the credentials of the Inspector as well as the credentials of anyone else who accompanies the Inspector. The Inspector should not object if you desire to contact the local OSHA office to ensure the Inspector is at the right place. The question of whether to require the Inspector to obtain a search warrant is a delicate issue that requires discussion and consideration beyond the scope of this article.
The Opening Conference – The Inspector should then conduct an opening conference with the company representative during which he or she will endeavor to explain why he or she is at the facility and what he or she intends to do. If the Inspector fails to conduct such a conference, the company representative should require one. If not offered by the Inspector, be certain to inquire as to the specific reason for the inspection and to ascertain the scope of the inspection.
Typically, the Inspector will inform you that he or she is there because (i) there was a written employee complaint alleging a hazard, (ii) there has been an accident, or (iii) OSHA has selected your company for inspection based upon a program developed by the agency to address or target a specific workplace hazard (e.g., lead, asbestos, forklifts, etc.) If a complaint is involved, a copy of the complaint will be presented (with the complainant’s name removed). Do not hesitate to ask for a copy of the complaint or information on the specific programmed inspection that the Inspector is relying upon. The Inspector will almost certainly require review of certain safety documentation (e.g., written programs, training materials, postings, documentation and recordkeeping) required to be routinely maintained by your facility.
During the Inspection – Once the opening conference has been completed, the Inspector will begin the inspection. The company’s representative should accompany the Inspector throughout the facility at all times. During the inspection tour, the Inspector will determine the route and duration but will usually limit the tour to the scope discussed in the opening conference. During this time, the company representative should take detailed notes in order to memorialize the Inspector’s comments and questions, as well as the instruments being utilized during the inspection.
Employees are very likely to be questioned during the inspection tour. Your employees should be aware of their rights. Employees have a right to decline an interview with the Inspector. If the employee so desires, he or she may have a manager present during the interview. The interview may also be conducted privately if that is the employee’s wish. The employee may request legal counsel prior to being interviewed. If the employee is interviewed, he or she must answer the questions truthfully and must not speculate if he or she does not know the answer. A detailed log of which employees were questioned and their responses must be kept so the corporate representative may conduct follow up.
It is often a good idea to have an inspection kit handy which should include a camera, camcorder and testing, sampling and measuring equipment. It is always advisable to duplicate whatever tests the Inspector is conducting. If the Inspector is taking pictures of equipment, the safety official should do the same. It is unwise, however, to do more. For example, if the Inspector is not videotaping, it does not make sense for the company representative to do so as such video could ultimately be requested by OSHA. It is wise to have a maintenance worker handy to correct any violations on the spot. The Inspector will often discuss likely violations and even offer recommendations for corrective action.
During the inspection, it is a good idea to comply with the following rules:
- Answer questions honestly, truthfully and succinctly, without admitting guilt;
- If you are uncertain as to the answer to a question, explain that you are not certain and that you will inquire further into the question. Never guess or estimate.
- Do not offer information unless specifically asked for it;
- Do not discuss incidents or accidents that have occurred in the past unless specifically asked to do so;
- Do not be argumentative or discuss political reviews regarding OSHA
The Closing Conference – After the inspection is concluded, the Inspector typically conducts a brief closing conference with the company representative to discuss the findings of the inspection. The Inspector usually explains the possible course of action the company could take following an inspection – including an informal conference with OSHA personnel or contesting the proposed violations and associated penalties. An OSHA inspection is a stressful and unwelcome experience. By being prepared and following sound practices and procedures, you can greatly help your company improve its chances of a favorable inspection outcome.