By Robert G. Chadwick, Jr., Partner, Freeman Mathis & Gary, LLP.
Much of the evidence to support a citation is gathered by OSHA during a walk-around inspection of the employer’s operations. For this reason, it is imperative that the employer be diligent to protect its rights and interests during this component of an OSHA inspection.
DO Have a Management Representative Accompany OSHA During the Walk-Around Inspection.
The OSH Act specifically allows a management representative to accompany OSHA on the walk-around inspection. 29 U.S.C. 657(c). To protect its interests, the employer should exercise this right.
DO Require OSHA Representatives to Obey Safety and Security Rules and Procedures During the Walk-Around Inspection.
If visitors to an employer’s worksite are expected to be familiar with and follow certain safety and security rules and procedures, the OSHA representatives should likewise be expected to be familiar with and follow the same rules and procedures. Otherwise, OSHA may discern that the employer does not take health and safety seriously, especially if the rules and procedures are also applicable to employees.
Personal Protective Equipment/Badges: Where personal protective equipment or radiation badges are required of visitors and employees, such equipment should be provided to and required of OSHA.
Orientation and Training: OSHA representatives should not be presumed to be familiar with an employer’s safety rules and procedures. The OSHA representatives should be provided the same orientation and training provided other visitors to an employer’s workplace. Typical rule and procedures which should be reviewed with OSHA include (1) emergencies, such as fires, spills and exposures; (2) evacuation routes and procedures; and (2) quarantine procedures.
Security: If visitors are required to log in or wear visitor badges, the same requirements should be imposed upon OSHA.
Where Applicable, DO Limit the Scope of the Inspection.
Where the permissible scope of the walk-around inspection is limited, the employer should police and monitor the route to make sure the permissible scope is not exceeded by OSHA. Allowing a broader inspection cannot be undone after the inspection.
DO Limit the Ability of OSHA to Observe Employer Operations Outside the Scope of the Inspection: To the extent possible, the employer should limit the ability of OSHA representatives to observe any operations outside the scope of the anticipated inspection. For example, if safe, doors to such operations should remain closed. Even if an operation is outside the scope of the anticipated inspection, what OSHA is able to view in plain sight can nevertheless be the basis for (1) a citation for an OSH Act violation or (2) an expanded inspection.
DO Deny Any Request for a Detour From Planned Inspection Route: The employer should deny the OSHA representatives access to areas, if any, outside the scope of the anticipated inspection. Accommodating a request for a detour even for an innocent reasons, such as a restroom, water or cigarette break, risks (1) a citation for a violation viewed by an OSHA representative during the detour; or (2) an expansion of the inspection based upon violations viewed during the detour.
DO Fight An Attempted Expansion of the Scope of Inspection: If OSHA wishes to expand the scope of the inspection, based upon information learned during the walk-around inspection, the employer should (1) discuss the request with OSHA in much the same manner as the opening conference; discussions regarding the scope of the inspection should not be made during the walk-around inspection; (2) inquire as to OSHA’s basis for seeking an expanded inspection; and (3) object if the basis is without merit.
DON’T Attempt to Conceal Any Operations From OSHA’s View Which are Within the Permissible Scope of the Walk-Around Inspection.
The employer should not attempt to conceal the view of OSHA representatives from areas within the permissible scope of the inspection. Due to OSHA inspection training, such an effort will likely fail. Worse, such an effort will likely only draw OSHA’s attention to the work area sought to be concealed.
DO Collect Evidence
During the inspection , OSHA will be collecting evidence in the form of photographs, video and audio recordings, samples, tests and measurements. Despite any oral assurances to the contrary, OSHA is not bound to share this evidence with the employer. The management representative who accompanies OSHA on the walk-around inspection, therefore, should be collecting evidence on behalf of the employer for use in defending an OSHA citation.
DO Observe Everything From the Same Perspective as the OSHA Representative: If an OSHA representative takes a photograph or video or audio recording of an employee or work location, the management representative should also take a photograph or recording from the same perspective as the OSHA representative.
DO Simultaneously Collect Same Physical Evidence as Collected by OSHA Representative: To the extent necessary equipment is available, for every sample, test or measurement taken by OSHA, the same sample, test or measurement should be taken by the management representative.
DO Talk With Employees About Hazards Discovered During Inspection: With an eye toward collecting evidence only, the employer should ask employees about hazards discovered during the walk-around inspection.
DO Take Notes.
The management representative should take meticulous notes during the walk-around inspection regarding (1) specific operations observed by OSHA; and (2) questions asked by the OSHA representative(s). After all, OSHA is taking notes.
DO Immediately Address Detected Hazards
Certain hazards detected during a walk-around inspection can and should be immediately addressed by an employer. Amongst the actions which can be taken by an employer during an inspection include the following:
Employee Discipline: Employees observed to be engaged in conduct in violation of the employer’s safety rules should be immediately reprimanded. This action may risk alerting OSHA to the violation, but the employer may risk more by doing nothing in response to a violation which OSHA has already noted.
Fix Hazards: A hazard which is capable of being fixed during the inspections should be immediately abated.
Discontinue Hazardous Work: Although discontinuing work until a serious hazard is abated may be a drastic measure, the risk of doing nothing may be a citation for a willful violation of the OSH Act.
DON’T Conduct Demonstrations.
There is no obligation on the part of the employer to perform demonstrations of work operations not otherwise being performed at the time of the walk-around inspection. To do so, risks (1) providing OSHA with additional questions to ask; (2) a citation for an unwittingly admitted or demonstrated violation; or (3) a basis for expanding the scope of the inspection.
DO Object to Disruptive Impromptu Interviews of Employees.
Frequently, OSHA will attempt to conduct private impromptu interviews during the walk-around inspection of employees at their work stations. Such impromptu interviews are not necessarily improper, but they may be improper if they unreasonably disrupt the employer’s operation. The employer should object to an impromptu interview if it (1) prevents the employee from performing an essential job task; or (2) takes the employee away from his or her job duties for an extended period of time. Since OSHA has the right to interview the employee, however, the employer should couple its objection with an alternative time to interview the employee.
DON’T Respond to Dangerous Questions to Management Representative.
Often, OSHA will ask questions of the management representative during the walk-around inspection which call for damaging admissions. The management representative should avoid any response to these questions lest they bind the employer to a potentially damaging admission: (1) How long has this hazard been here? (2) Have there been any close calls due to the hazard? (3) Who knows about his hazard? (4) You know this is an OSH Act violation, right? (4) You know an employee can be seriously injured or die because of this hazard right? (5) Isn’t there an industry standard which prohibits this?
DO Defer Questions to Management Representative if Interview is Anticipated in Presence of Legal Counsel.
Frequently, OSHA will ask questions of the management representative during the walk-around inspection with legal counsel absent. If an interview of the management representative is anticipated in the presence of legal counsel, such questions should be deferred until the interview itself.