OSHA CITATIONS AGAINST STAFFING AGENCIES ON THE RISE!

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

In March 2016, OSHA conducted an inspection of the Thomson, Georgia facility of HP Pelzer Automotive Systems, Inc., an automobile parts manufacturer.  Among the employees working at the facility were 300 temporary employees supplied by Sizemore, Inc., a staffing agency.  On September 7, 2016, OSHA issued citations proposing penalties of $654,726 against HP Pelzer for various machine hazards.  The same date, OSHA issued citations proposing penalties of $49,884.00 against Sizemore.

The dual citations against HP Pelzer and Sizemore are not unusual. Just this year, the following dual citations have also been issued by OSHA against both the host employer and the staffing agency supplying temporary employees:

July 15, 2016: Citations proposing penalties of $87,120 against Pyongsan America, Inc., an automobile parts manufacturer, and citations proposing penalties of $18,900 against Surge Staffing, LLC, a staffing agency, were issued for various machine hazards.

June 29, 2016: Citations proposing penalties of $3,426,900 against Sunfield, Inc., an automobile parts manufacturer, and penalties of $7,000 against each of three staffing agencies, Atrium Personnel, iforce and Employers Overload, were issued for various machine hazards.

June 24, 2016: Citations proposing penalties of $58,800 against Terrell Manufacturing Company, a woodworking manufacturer, and Citations proposing penalties of $4,800 against A.L. Staffing, a staffing agency, were issued for various machinery hazards.

February 2, 2016: Citations proposing penalties of $37,600 against Kinsey Corp., a construction contractor, and $7,000 against Gillmann Services, a staffing agency, were issued for trenching and excavation hazards.

Why Does a Safety Violation Affecting Temporary Workers Subject Both the Host Employer and Staffing Agency to a Citation?

The answer is that the OSH Act imposes a responsibility on each employer to protect the safety and health of employees subject to its direction and control, even if the employees are jointly employed by another employer.  For host employers, this responsibility extends to temporary employees supplied by staffing agencies.  For staffing agencies, this responsibility extends to temporary employees supplied to host employers.

What Violations are the Subject of Dual Citations by OSHA?

So, why are staffing agencies being cited for safety violations located at host employer work sites over which they may have no control?  The answer is that the OSH Act imposes a responsibility on employers to protect their employees, regardless of where the employees work. As indicated in the Temporary Worker Initiative  launched by OSHA on April 29, 2013, it is the responsibility of a temporary staffing agency to follow the OSH Act with respect to workers supplied to host employers.

So what violations are staffing agencies being cited for by OSHA?  After all, it is the host employer, not the staffing agency, which generally controls the working conditions at its work site.  For dual citations, one common violation is a failure of temporary employees to be trained for the tasks performed for the host employer. According to the Temporary Worker Initiative, it is typically the responsibility of a staffing agency to provide general safety training to its employees before sending them out on job assignments.  For more specific safety training, the staffing agency must either (1) provide such safety training itself, or (2) ensure that such training is being provided by the host employer. If these responsibilities are not undertaken by the staffing agency, a citation may issue.

Where hazardous conditions exist at a host employer, a staffing agency may also be cited for the hazardous conditions themselves.  According to the Temporary Worker Initiative, a staffing agency has duties of inquiry and verification with respect to the workplaces to which temporary workers are assigned.  Specifically, the staffing agency has the duty to inquire and verify that the host employer has fulfilled its duties to provide a safe workplace.  If these duties ae not fulfilled by a staffing agency, a citation may issue.

What Steps Should be Undertaken by Staffing Agencies In Response to OSHA’s Enforcement Efforts?

As a first step, no employee should be assigned by any staffing agency to any worksite without documented general safety training.  General training may be different for office worksites, but should still be required and documented.

Secondly, before assigning any workers to a host employer, a staffing agency must become generally familiar with the OSHA standards applicable to the host employer’s industry.  Only by becoming familiar with such OSHA standards can the staffing agency adequately fulfill its independent duties of inquiry and verification as to such standards with the host employer.

Finally, before assigning any workers to a host employer, a staffing agency must communicate with the host employer regarding (1) the working conditions which exist at the host employer’s worksite, (2) the duties which will be undertaken by temporary workers, (3) the hazards which may be encountered by the temporary workers, and (4) the procedures, including specific training, to be undertaken by both the staffing agency and/or the host employer to ensure compliance with applicable OSHA standards.  As with all OSHA compliance efforts, communications with the host employer should be thoroughly documented.

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BAD PRESS: YET ANOTHER RISK OF AN OSHA INSPECTION!

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

On August 16, 2016, OSHA issued a news release on its website announcing that citations had been issued by the agency against Tyson Foods, Inc. for alleged violations at its chicken processing facility in Center, Texas.  The citations proposed penalties of $263,000 for 15 alleged serious and 2 alleged repeated workplace safety violations.  Rather than merely announcing the citations against Tyson Foods however, the news release described  a “gruesome” amputation injury that led the agency to investigate the facility.  The news release also included a statement from Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, scolding Tyson Foods for not doing “much more to prevent disfiguring injuries like this one from happening.” Predictably, the news release and Dr. Michael’s remarks were quoted in media outlets nationwide.

Public shaming of businesses which receive citations is not a new strategy for OSHA.  In 2016 alone, more than 500 news releases similar to the one announcing the citations against Tyson Foods have been issued by the agency on its website.  At a 2010 conference, Dr. Michaels even boasted of the strategy of “regulation by shaming”, and said OSHA would undertake to issue news releases that “name employers, expose their failings, and detail the serious hazards uncovered in our inspections.” Potential legal exposure is not a deterrent to such news releases since the agency generally enjoys sovereign immunity from claims of defamation and disparagement.

OSHA citations may later be amended, reduced or even dismissed, but the damage to a business’ reputation from an unfavorable news release can be more difficult to mitigate. Bad press is thus yet another reason why the risks of an OSHA inspection must be addressed during the inspection itself, rather than after citations have already been issued.

SURVIVING OSHA INTERVIEWS OF MANAGEMENT EMPLOYEES!

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

The OSH Act authorizes OSHA, as part of an inspection of an employer, to “question privately any such employer, owner, operator, agent or employee.” As part of an OSHA inspection, therefore, the employer should expect the agency to request interviews with both non-management and management employees.

What Rights Do Management Employees Have as to OSHA Interviews?

Absent a subpoena or search warrant providing otherwise, a management employee generally has the right to:

  • Consent to an interview with OSHA.
  • Provide information to OSHA without threats, retaliation or discrimination by the employer.
  • Refuse to consent to any interview by OSHA. Although OSHA has the authority to conduct interviews, it does not alone have the power to compel interviews.
  • Refuse to be interviewed without an interpreter if English is not the employee’s primary language. No employee need consent to an interview the content of which is foreign to the employee.
  • Refuse to consent to a private interview by OSHA. The employee may condition his or her consent to an interview upon the presence of another individual, including another management employee, personal legal counsel or company legal counsel.
  • Refuse to consent to an interview by OSHA absent the ability of the employee to conduct his or own audio recording of the interview.
  • Refuse to answer any question by OSHA. The employee thus has the right to refuse to answer any question which (1) is outside the scope of the inspection, and/or (2) asks the employee to incriminate himself or herself as to criminal conduct.
  • End the interview at any time for any reason.
  • Refuse to sign a post-interview written statement prepared by OSHA.
  • Refuse to consent to audio or video recording of the interview by OSHA.
  • Refuse to provide private contact information to OSHA.

What Can’t a Management Employee Do in an OSHA Interview?

An employee can face criminal prosecution for providing false information to OSHA.

What Rights Does an Employer Have as to OSHA Interviews of Management Employees?

Absent a subpoena or search warrant providing otherwise, an employer generally has the right, as to interviews of management employees, to:

  • Inform the employees of their interview rights.
  • Attend the interviews.
  • Require that the interviews take place at a time and place which do not unreasonably disrupt the employer’s operations.
  • End an interview with an employee which, due to its length, unreasonably disrupts the employer’s operations.
  • Notify OSHA of trade secrets revealed during the interview which must be protected.

What Can’t an Employer Do as to an OSHA Interview of a Management Employee?  

As to even a management employee, an employer cannot:

  • Threaten an employee before an interview by OSHA.
  • Discharge, discriminate or retaliate against an employee who has been interviewed by OSHA.

What Types of Questions Does OSHA Ask of Management Employees?

Typical areas of inquiry by OSHA during an interview of a management employee include:

  • Identifying and contact information.
  • Position and responsibilities.
  • Efforts by the employer to comply with the OSH Act.
  • The employer’s health and safety program, including the frequency and content of safety and health training and meetings.
  • Personal knowledge as to workplace hazards.
  • Personal knowledge of whether the hazards presented a risk of death or serious injury to employees.
  • Personal knowledge as to whether hazard violated the OSH Act.
  • Knowledge of other management employees as to workplace hazards.

What Should be Done in Preparation for an Interview by OSHA of a Management Employee?

Before an OSHA interview, both the employer and the employee should become familiar with the follow dos and don’ts:

  • DON’T regard the Compliance Safety & Health Officer as a friend. OSHA is asking questions to determine if the employer should receive a citation and fines.
  • DON’T volunteer information. Volunteering information risks (1) providing OSHA with additional questions to ask, (2) a citation for an unwittingly admitted violation, or (3) a basis for expanding the scope of an otherwise limited inspection. Don’t be goaded into volunteering by long pauses.
  • DON’T guess. No employee should ever resort to speculation about anything during the interview.  Speculation may be accepted by OSHA as fact.
  • DON’T answer presumptive but inaccurate questions. When did you correct this hazard, is a question which presumes there was a hazard to begin with.
  • DON’T answer questions which exceed the scope of a limited inspection. Answering such questions may open the door to a broader inspection.
  • DON’T disclose the contents of communications with legal counsel. These communications are privileged and disclosure may waive the privilege.
  • DO respect OSHA’s questions and the interview process.  Impatience with OSHA may be regarded as indifference to the safety of workers.
  • DO become familiar with the aforementioned rights and obligations.
  • DO memorialize the content of the interview with OSHA with either an audio recording of the interview or meticulous notes. OSHA should not be trusted to accurately recount the content of the interview. After all, OSHA’s agenda is not necessarily to exonerate the employer.
  • DO identify any information disclosed during an interview which is a trade secret. The failure to identify information as a trade secret may waive legal protections. See How Can Trade Secrets be Protected in an OSHA Inspection?(August 23, 2015)
  • DO avoid self-incrimination. Amongst the dangerous questions which call for self-incrimination are: (1) How long has this hazard been here? (2) Have there been any close calls due to the hazard? (3) Who knows about this hazard? (4) You know this is a violation, right? (5) You know someone can be seriously injured because of this hazard, right?

WHAT EMPLOYERS NEED TO KNOW ABOUT OSHA’S NEW ELECTRONIC RECORD RULES!

By Robert G. Chadwick, Jr, Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC

On May 12, 2016, OSHA published a Final Rule amending its recordkeeping regulations to include new electronic submission mandates for certain work establishments.  This Rule was published at the  same time as new anti-retaliation regulations explained in this blog’s May 12, 2016’s post entitled What Employers Need to Know About OSHA’s New Anti-Retaliation Regulations!  The new electronic recordkeeping mandates will be phased in over two years.

Which Work Establishments Must Comply With the Final Rule? 

The new electronic recordkeeping mandates apply to two groups of establishments:

  • An establishment with 250 or more employees; or
  • An establishment with 20-249 employees which is classified in an industry listed in Appendix A to the Final Rule. Appendix A lists 66 industries.

What Does the Final Rule Mandate?

The Final Rule mandates that establishments with 250 or more employees electronically submit injury and illness data they are already required to record on their onsite OSHA Forms 300, 300A and 301. See What Employers Need to Know About OSHA Injury/Illness Records Mandate, posted on March 14, 2016. The Final Rule mandates that a covered establishment with 20-249 employees electronically submit its OSHA Form 300A.

How Will the Mandated Electronic Information be Submitted?

OSHA will provide a secure website for the electronic submission of information.

Does the Final Rule Replace Existing Injury/Illness Records Mandates?

No. If an establishment is already required to create and maintain an OSHA Form 300, 300A and 301, the establishment will still be required to maintain the Form even if the electronic submission mandates do not apply. Similarly, if an establishment is partially exempt from maintaining OSHA injury/illness records, the partial exemption remains.

What is the Timetable For Phasing In the New Mandates?

Covered establishments with 250 or more employees must electronically submit information from their 2016 OSHA Forms 300A by July 1, 2017  Such employers must electronically submit information from their 2017 OSHA Forms 300, 300A and 301 by July 1, 2018. Beginning in 2019 and every year thereafter, the mandated information must be electronically submitted by March 2.

Covered establishments with 20-249 employees must electronically submit information from their 2016 OSHA Forms 300A by July 1, 2017, and their 2017 OSHA Forms 300A by July 1, 2018.  Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

What Does the Final Rule Authorize OSHA to Do With Electronically Submitted Information?

Some of the data will be posted to the OSHA website.  OSHA maintains that “public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public.”

What Does the Final Rule Mean for OSHA State  Plans?

OSHA State Plan states must adopt requirements that are substantially identical to the requirements in the Final Rule within 6 months.

What Does the Final Rule Mean for OSHA Inspections?

Increased access to injury and illness data will allow OSHA to better (1) target establishments for inspection, (2) evaluate whether or not an OSHA violation was willful, and (3) determine the fines which should be proposed for an OSHA violation.

 

 

WHAT EMPLOYERS NEED TO KNOW ABOUT OSHA’S NEW ANTI-RETALIATION REGULATIONS!

By Robert G. Chadwick Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC

On May 12, 2016, OSHA published a Final Rule amending its recordkeeping regulations to include new anti-retaliation protections for employees who report work-related injuries and illnesses. The new anti-retaliation protections are effective August 10, 2016.

What Does the Final Rule Prohibit of Employers?

The Final Rule makes it unlawful for an employer to “discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”

What Does the Final Rule Require of Employers?

The Final Rule requires employers to take the following actions:

  • Establish “a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness;”
  • Inform “each employee of [its] procedure for reporting work-related injuries and illnesses;” and
  • Inform “each employee that (1) Employees have the right to report work-related injuries and illnesses; and (2) Employers are prohibited from discharging or in any manner discriminating against any employee for reporting a work-related injury or illness.”

What Enforcement Options are Available for a Violation of the Final Rule?

The Final Rule seemingly allows for two enforcement options in the event of retaliation.  First, the Final Rule implies that discrimination against an employee for reporting a work-related injury or illness is itself a recordkeeping violation which can form the basis of an OSHA citation and fines.   OSHA inspections are thus an option for enforcement of the new anti-retaliation protections.

Second, the Final Rule interprets Section 11(c) of the OSH Act as already prohibiting retaliation “against an employee for reporting a work-related fatality, injury or illness.” Section 11(c) (1) provides a 30-day window for an employee to file a complaint, (2) is enforced through investigations conducted by OSHA’s Whistleblower Protection Program,  (3) authorizes the Department of Labor to  bring suit against an employer in a U.S. District Court for unlawful retaliation, and (4) authorizes a U.S. District Court “to order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.”

 

EMPLOYER DOS AND DONT’S DURING AN OSHA WALK-AROUND INSPECTION!

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC

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.

WHAT DOES AN EMPLOYER NEED TO KNOW ABOUT OSHA’S WALK-AROUND INSPECTION?

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

During an OSHA inspection, the agency will conduct a physical inspection of the employer’s operations to gather relevant evidence.

When Does the Walk-Around Inspection Take Place? 

A walk-around inspection will generally take place after the opening conference and OSHA’s review of the employer’s records.

How Long is the Walk-Around Inspection?

There is no time limit on the walk-around inspection but the inspection should not be so long as to unreasonably disrupt the employer’s operation.

What is the Permissible Scope of the Walk-Around Inspection?

As previously noted in the December 6, 2015 post entitled “What Does an Employer Need to Know About an OSHA Opening Conference?”, the scope of the walk-around inspection is generally determined during the opening conference of an OSHA inspection.  Anything which is in plain sight to OSHA during the walk-around inspection, however, can be the subject of a later citation.

What Determines the Manner and Route of the Walk-Around Inspection? 

As previously noted in the December 6, 2015 post entitled “What Does an Employer Need to Know About an OSHA Opening Conference?”, the manner and route of the walk-around inspection can be discussed between the employer and OSHA during the opening conference.  Otherwise, the Compliance Safety & Health Officer (“CSHO”) will determine the manner and route subject to the following considerations: (1) the availability of the management representative or employee representative who will be accompanying the CSHO, (2) compliance with the employer’s safety and health rules and procedures, and (3) avoidance of unreasonable disruption of the employer’s operations.

Who Can Participate in the Walk-Around Inspection?

One management representative at a time and one employee representative at a time have the right to accompany OSHA during the walk-around inspection; the management representative and employee management can be substituted during the course of the inspection.  OSHA may be represented by more than one government official during the walk-around inspection, but one CSHO will generally lead the inspection.

What Does OSHA Do During the Walk-Around Inspection?

For a substantial part of the walk-around inspection, OSHA will be simply visually observing the health and safety conditions of the workplace and taking notes.  OSHA will also be collecting physical evidence.

Photographs:  Subject to any prior understanding as to the protection of the employer’s trade secrets, OSHA may photograph the employer’s workers and work operations.

Audio and Video Recordings: Subject to any prior understanding as to the protection of the employer’s trade secrets, OSHA may conduct audio and video recordings of the employer’s workers and work  operations.

Samples:  OSHA may collect air, water and chemical samples, and swipe samples from workplace surfaces.

Monitoring:  OSHA may monitor or take instrument readings as to employee exposures to toxic fumes, contaminants, chemicals, gases, dusts, radioactivity, etc.

Measurements:  OSHA may take measurements of lighting and noise levels, as well as any measurements of height or distance which may be relevant to an OSHA standard.

Questions:  OSHA may also question both managerial and non-management employees as to observable work conditions and operations.

Does OSHA Provide Feedback During the Walk-Around Inspection?

OSHA will normally, but not always, advise the employer’s management representative of the existence of workplace hazards which can be immediately or quickly abated.