By Robert G. Chadwick, Jr., Partner, Freeman Mathis & Gary, LLP.
Early one morning, an OSHA Compliance Safety & Health Officer arrives unannounced at your place of business requesting an immediate inspection of your workplace, interviews of your employees and a review of safety-related documentation. In ideal circumstances, the OSHA inspection would proceed immediately, and in an orderly fashion, to an opening conference where a management representative would (1) inspect the search warrant or employee complaint, if any, (2) decide whether to allow the inspection, and (3) discuss the scope of the inspection.
As many employers can attest, not all OSHA inspections begin under such ideal circumstances. The Compliance Officer may arrive at the workplace at a time when (1) no management representative is immediately available, or (2) other matters are demanding the employer’s immediate attention. The Compliance Officer may be alone with an employee who is ill-prepared for such an encounter. Even worse, the Compliance Officer may be left alone to wander the workplace, and witness not only the employer’s operations, but also the urgent clean-up prompted by OSHA’s arrival.
The first minutes of an OSHA inspection, however, can be critical. Anything said by a management or non-management employee before the opening conference can become a part of the inspection file. Anything seen by the Compliance Officer before the opening conference can likewise become part of the inspection file. These developments can form the basis not only for citations and fines, but also a broader scope of inspection than may have been authorized beforehand.
Just as any other part of an OSHA inspection, therefore, the short time-period between the arrival of the Compliance Officer and the opening conference should be managed. So, what do you need to do or don’t do to survive these critical first minutes of an OSHA inspection?
DON’T enable communications with OSHA by non-management employees. As set forth in previous posts (here and here) on this blog, the opening conference provides the employer with an opportunity to safeguard its rights during an OSHA inspection. Communications by the Compliance Officer with non-management employees before the opening conference may hinder this opportunity. If the inspection moves forward, there will be a time for interviews of non-management employees. At least as to the time-period before the opening conference, non-management employees should be instructed that all communications with the Compliance Officer shall be through management representatives.
DON’T enable decisions by non-management employees. The open conference also provides the employer with the opportunity to make informed decisions about the future course of the OSHA inspection. This opportunity may be lost if a non-management employee allows the Compliance Officer to see the workplace before the opening conference. If the inspection moves forward, there will be a time for a physical inspection of the premises and a review of documents. At least with respect to the time-period before the opening conference, non-management employees should be instructed that the only persons with authority to allow an OSHA inspection to proceed are management representatives.
DO review the Compliance Officer’s credentials. Typically, a Compliance Officer will voluntarily provide his/her credentials immediately upon arrival at the workplace. Take the time to review the credentials.
DO take the situation seriously. An OSHA inspection can be the beginning of a civil or even criminal legal process that can have significant adverse consequences for your business. Since January 20, 2017, over sixty citations have been issued by the agency proposing fines in excess of $100,000. On January 20, 2017, a Missouri company was convicted of OSH Act violations in connection with the death of an ironworker.
DON’T panic. A calm rational and informed response is the best strategy for managing the risks of an OSHA inspection. As noted in a previous post on this blog, whether it is better for the employer to allow or deny access to the Compliance Officer may not be apparent in the opening minutes of the inspection.
DON’T assume there is nothing you can do. As set forth in multiple posts on this blog, there are rights and strategies which an employer can exercise before, during and after an OSHA inspection to minimize the risk or magnitude of adverse consequences for its business. Even if an employer does not own or control the worksite which is the subject of the inspection, there is always something it can do to protect its rights.
DON’T assume there is nothing you need to do. An employer is often its own worst enemy if it approaches an OSHA inspection with (1) complacency about the safety of its own workplace, or (2) the belief that it has nothing to hide. History is replete with OSHA citations issued against employers which operated under such false assumptions. The exercise of rights and strategies afforded by law can be instrumental in minimizing legal and financial exposure.
DO act quickly. Without immediate management of the situation, an employer exposes itself to citations for safety hazards even before the opening conference has begun. An employer may have several matters which require its attention on the day of an OSHA inspection. These matters should be balanced against the potential risk of OSHA citations and fines of six figures or more.
DO limit the Compliance Officer’s movements. If the employer does own or control the worksite of the inspection, it should endeavor to limit the movements of the Compliance Officer between the time of his/her arrival and the opening conference. Any view of previously unseen parts of the workplace should be specifically avoided. Even a request by the Compliance Officer to use the restroom should consider what may be seen along the path to and from the restroom.
DO keep the time-period before the opening conference short. The time between the arrival of the Compliance Officer and the opening conference must be kept short. Otherwise, the Compliance Officer will leave to (1) obtain a search warrant, or (2) seek enforcement of a search warrant. Such options may not always be in the employer’s interest.
DON’T be pressured by the Compliance Officer. If an OSHA inspection does not move forward with deliberate speed, the Compliance Officer may ask whether the inspection is being refused. Until the decision is finally made whether to proceed with the inspection, the answer must be no. An employer should never be pressured to abandon its rights during an inspection.
DO choose a strategic location for the opening conference. If the employer does own or control the worksite of the inspection, a long trip to the location of the opening conference may not be in its best interest. Everything viewed by the Compliance Officer along the way can be the basis for a citation. Long trips should thus be avoided.
DO Show Respect for the Inspection Process. OSHA views the inspection as an essential tool to police employee health and safety. An OSHA inspection is neither the time nor the place to attack the process by which the OSH Act is enforced. A disrespectful attitude toward the inspection can be viewed as indifference toward employee health and safety. An employer should avoid statements to the effect that:
“This Inspection is an Annoyance.” At no time during an inspection should an employer indicate to OSHA that the inspection is a waste of time or a mere annoyance.
“How Quickly Can this Inspection be Wrapped Up?” Although concluding an inspection within a reasonable time period is a worthwhile goal, the employer should not unreasonably rush the CSHO or indicate that it has more pressing matters to attend to. The CSHO will likely not respond favorably to impatience.
DON’T hesitate to seek assistance. Finally, the time period before the opening conference provides the opportunity to seek assistance from others more knowledgeable regarding OSHA inspections. Such assistance can be from legal counsel, but also can be from occupational safety and health experts.