Favorable Outcomes

OSHA inspection

Surviving an OSHA Inspection: Act now, before it's too late.

By Aaron Gelb

Obtaining a favorable outcome after an OSHA inspection requires time and effort by an employer long before it hears the dreaded knock at the door. As the saying goes, “By failing to prepare, you are preparing to … pay an OSHA citation?”

While that is not quite how the saying goes, the message is the same. To survive an inspection relatively unscathed, an employer should resolve to develop a plan now so that the managers likely to be involved in an inspection will know what to do (and not do) when OSHA arrives. Without such a plan, management will likely be scrambling while the compliance officer is waiting in the reception area.

Here is a broad overview of steps an employer should take both before and during an inspection to reduce the likelihood and severity of potential OSHA citations.

Designate and Educate a Response Team.

To avoid confusion at the outset, an employer should select at least one person who will serve as the primary point of contact with the OSHA compliance office before, during and after the inspection. Ideally, the employer will create a team of responsible individuals that can be deployed seamlessly in the event of an inspection with members capable of covering for each other in the event one or more team members are absent when the compliance officer arrives.

Each team member should be cross-trained so they know their role(s), know what they should and should not say and know the company’s rights during the inspection and how to assert them. For example, the inspection team member should understand that OSHA can access an employer’s facility only with the employer’s consent or with a warrant. While most employers typically waive their right to demand a warrant, members of the inspection response team should know how the company would like them to respond when OSHA arrives and whom they should call if they have questions.

The inspection team’s contact list should thus include not only outside (or internal) counsel and at least one senior member of management, but also the phone numbers (cell and work) for other team members and their back-ups. The inspection team members should also have a camera (with video capabilities), labels to mark documents produced during the inspection and/or to note which documents should be designated as confidential, tools for physical sampling, and a log to keep track of interview and/or document requests.

Make Safety a Priority.

An employer that makes safety compliance a priority is, of course, more likely to emerge from an inspection relatively unscathed compared to one that pays lip service to safety or ignores it entirely. No amount of planning and preparation will save an employer if safety is merely an afterthought.

Ideally, an employer will foster a partnership between employees and management in which a culture of safety and continuous improvement can be achieved in the long-term. More immediately, there are a number of steps that a proactive employer can take, including putting together a comprehensive safety and health program, conducting regular safety and health audits and/or risk assessments, ensuring that employees are properly trained relative to their roles and responsibilities, and taking prompt action to respond to and address incidents (whether an accident or a near miss) by correcting any potential hazards, as well as issuing discipline if it has been determined that an employee or manager violated company safety rules.

The importance of creating and retaining the necessary documentation cannot be overstated. Members of the inspection team should be able to readily provide the compliance officer with employee training records and copies of the applicable safety programs, in addition to the mandatory OSHA 300 logs.

Set the Ground Rules and Follow Along Closely.

After asking to see the compliance officer’s credentials to verify they are who they claim to be, the inspection team leader should find out why OSHA wishes to conduct an inspection. Even when the reason is obvious – an employee was hospitalized recently after a workplace accident – it is imperative that the inspection team confirms with the compliance officer the intended scope of the inspection. This will typically take place during the opening conference. If the compliance officer states that he or she is there to inspect the work area where the accident occurred, the inspection team can and should decline requests to inspect other areas or departments. The employer can also push back if it believes the compliance officer is making burdensome or unusual requests, as OSHA may inspect only during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner.

When in doubt about the scope and/or extent of the proposed inspection, the inspection team lead should seek advice and assistance from the designated company representative. As the inspection proceeds, members of the inspection team should shadow the compliance officer, take photos and/or videos from the same vantage, collect the same samples and log any documents and/or materials provided. While the compliance officer can and will insist that any employee interviews be conducted in private, the company has the right to insist that a management representative, such as an attorney, participate in any manager interviews. Last, but not least, there is typically no reason not to immediately address any safety hazards identified by the compliance officer during the inspection.

Check back in the next issue for a discussion about how employers can continue to thrive after the OSHA compliance officer leaves – even if citations are issued.

Aaron Gelb is the co-managing partner of Conn Maciel Carey’s Chicago office where he represents employers in all aspects of the employer-employee relationship with an emphasis on advising and representing clients in relation to inspections, investigations, and enforcement actions involving federal OSHA and state OSHA programs and managing a full range of litigation against OSHA. Gelb also has extensive experience litigating equal employment opportunity matters for the past 22 years, having tried several cases to verdict while defending employers before the EEOC and local fair employment agencies across the country. He can be reached at (312) 868-0294 or agelb@connmaciel.com.

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