By Robert G. Chadwick, Jr., Partner, Freeman Mathis & Gary, LLP.
Inspections of employer’s premises are the primary means by which OSHA enforces the OSH Act. OSHA inspections are generally conducted by an OSHA Compliance Safety & Health Officer (“CSHO”).
What Components Comprise the Inspection?
An OSHA inspection generally consists of five components:
The Opening Conference: The opening conference provides the opportunity to (1) learn the basis for the inspection; (2) address preliminary matters relevant to the inspection; and (3) determine the scope of the inspection.
Program and Record Review: The CSHO reviews written programs and records required to be created and/or maintained by the OSH Act.
Walk-Around Inspection: The CSHO, an employer representative and employee representative (if any) tour the worksite and observe the operations. The CSHO may collect physical evidence my taking photographs, video and audio recordings, samples, tests and measurements.
Employee Interviews: The CSHO privately interviews management and non-management employees regarding the employer’s operations.
Closing Conference: The closing conference provides the opportunity to discuss (1) apparent violations and other issues discovered during the inspection; (2) timetables for abating hazards; and (3) the rights and procedures in the event of citations and penalties.
Who can Participate in the Inspection?
CSHO: The CSHO generally conducts the inspection on behalf of OSHA, but may be accompanied by other OSHA representatives. There are generally three types of CSHOs: (1) Safety Engineers, (2) Safety Compliance Officers; and (3) Industrial Hygienists.
Employee Representative: If there is an employee representative at the employer, the representative is entitled to participate in the inspection. An employee representative may be any of the following:
- A representative for purposes of collective bargaining.
- An employee member of a safety and health committee.
- An individual employee who has been designated as the employee representative for OSHA inspections.
Non-Management Employees: Non-management employees participate in the inspection by providing information during private interviews.
Management Representative(s): One or more management representatives can participate in the OSHA inspection as (1) the employer’s representatives, or (2) employees to be interviewed by the CSHO. Management representatives generally cannot be present during the interviews of non-management employees.
Employer’s Legal Counsel: Legal counsel for the employer can generally participate in parts of the OSHA inspection, but does not have the right to participate in the walk-around inspection or the interviews of non-management employees.
When Does the Inspection Begin?
A CSHO typically arrives at an employer’s worksite early in the morning. A CSHO will generally pursue an inspection immediately, especially if allowed by a search warrant.
Work Hours: An OSHA inspection is generally conducted during work hours so the CSHO may observe the work operations.
Non-Working Hours: In some instances, a CSHO may conduct non-management employee interviews during non-working hours away from the employer’s workplace.
How Long Does the Inspection Last?
There is no time limit on an OSHA inspection. An OSHA inspection can span hours, days or weeks depending upon the nature and size of an employer’s operations.
What General Rights Does an Employer Have During the Inspection?
Other than rights as to who can participate in an OSHA inspection, an employer has several important rights during the inspection.
Basis of Inspection: The employer has a right to know the basis of the inspection. For formal employee complaints, this right includes the specific content of the complaint, but not the identity of the complainant.
Protection of Trade Secrets: The OSH Act specifically provides for the protection of an employer’s trade secrets that are within the scope of the inspection. An earlier article in this blog addresses the protection of trade secrets in greater detail.
Avoidance of Unreasonable Disruption: An OSHA inspection may only be conducted at “reasonable times, within reasonable limits and in a reasonable manner.” 29 U.S.C 657(a). The timing, manner or length of an inspection should thus not unreasonably disrupt the employer’s operations. Mere inconvenience is not synonymous with unreasonable disruption. OSHA oversteps its authority only if a component of the inspection would have a material impact on the employer’s operations.
Enforcement of Safety and Security Rules: OSHA is not immune from an employer’s safety and security rules. The employer should be able to enforce the same safety and security rules for the CSHO that are enforced for other visitors to the employer’s premises.
Can the Inspection be Terminated by the Employer?
The consequences of a termination of an inspection by an employer depend upon whether or not the inspection is being conducted pursuant to a search warrant or subpoena.
Search Warrant or Subpoena: The termination of an inspection being conducted within the terms of a search warrant or subpoena risks a contempt finding by the court that issued the search warrant or subpoena.
No Search Warrant or Subpoena: The termination of an inspection will likely prompt OSHA to return with a search warrant or subpoena.