By Robert G. Chadwick, Jr., Partner, Freeman Mathis & Gary, LLP.
The opening conference of an OSHA inspection typically takes place in an office or conference room and can address several matters, the most important of which are (1) the nature of the employer’s business, (2) the nature of the employer’s workforce, (3) the purpose of the inspection, (4) any legal bars to the inspection, (5) the scope of the inspection, (6) the timing, length and manner of the inspection, (7) the documents to be reviewed and their location, (8) the employer’s trade secrets, if any, and (9) the benefits of prompt abatement of hazards discovered during the inspection.
What is the Nature of the Employer’s Business?
There are at least two reasons for OSHA to inquire about the nature of an employer’s business: (1) OSHA may ask questions to determine whether the employer’s business is covered by the OSH Act; and (2) the nature of the employer’s business may determine the OSHA standards applicable to the employer.
What is the Nature of the Employer’s Workforce?
Since only employees are protected by the OSH Act, OSHA may inquire whether there are any independent contractors working on-site.
What is the Purpose of the Inspection?
OSHA should inform the employer as to the purpose of the requested inspection. The purpose may be a programmed inspection scheduled by the agency based upon certain selection criteria. The purpose may also be investigative in nature as to (1) an employee fatality, inpatient hospitalization, amputation, or eye loss, (2) a formal employee complaint, (3) an informal complaint, (4) a referral, (5) hazards directly observed by OSHA at or near the employer’s workplace, or (6) hazards identified during a previous inspection. If the purpose of the inspection is to investigate a formal employee complaint, the employer is entitled to know the content of the complaint, but not the identity of the complainant.
Are There any Legal Bars to an Inspection?
One question which can be addressed at the opening conference is whether there are any grounds for challenging the inspection. These grounds include (1) an applicable exemption to the inspection, (2) a defective formal complaint, or (3) a defective search warrant. The opening conference can also determine whether a different employer should properly be the target of the inspection.
What is the Permissible Scope of Inspection?
The inspection of an employer’s entire worksite is generally authorized as to a programmed inspection and may be authorized by a search warrant. For other inspections, the opening conference provides an opportunity to review a floor plan or map of the worksite to determine which areas will be included in the inspection.
What Will be the Timing, Length and Manner of Inspection?
The opening conference also provides OSHA and the employer the opportunity to discuss the logistics of the inspection and how to proceed with minimal disruption to the employer’s operation.
What Documents Are to be Reviewed and Where are they Located?
At the opening conference, OSHA and the employer will generally discuss the documents to be reviewed as part of the inspection and their current location. Where applicable, OSHA and the employer should try to determine whether any exemptions apply to the retention of injury and illness records. See If the documents are located at a different location, arrangements will need to be made at the opening conference for their review.
Are There any Trade Secrets to Protect?
As previously noted in the August 23, 2015 post entitled “How Trade Secrets Can be Protected in an OSHA Inspection“, the OSH Act provides for the protection of trade secrets which are within the scope of an OSHA inspection. The opening conference is the opportunity for OSHA and the employer to reach an understanding as to how the employer’s trade secrets will be protected. Still, it is incumbent upon the employer to identify the trade secrets and the areas at the worksite which contain or which might reveal these trade secrets.
What Happens if Easily Fixable Hazards are Discovered During the Inspection?
At the conclusion of the opening conference, the employer should have an understanding from OSHA as to the benefits under the agency’s Administrative Penalty Policy of (1) correcting hazards identified during the inspection, and (2) correcting hazards within 24 hours of the inspection.
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