United States: Be Ready To Defend The Castle: Employers Need A Written OSHA Inspection Management Policy

By Adam R. Young¹ and Mark A. Lies II²

Federal OSHA conducted 24,333 onsite inspections in 2021, resulting in thousands of citations. Make no mistake, OSHA (and especially Cal/OSHA) have been gearing up with a new generation of compliance officers, training them to pursue an aggressive enforcement-first strategy, and gunning to issue the numerous and easy-to-prove citations.

Though a typical set of citations may have a penalty of $15,000 - $30,000, there are numerous adverse legal and business consequences of a set of OSHA citations. Potential adverse effects include liability for Repeat or Willful citations down the road, adverse evidence in tort or third party litigation, and damaging reputational harm. Worse still, OSHA pursues criminal charges against operations and safety managers for willful violations issued in connection with fatalities, and for misstatements during OSHA inspections.

The probability of receiving citations can be greatly reduced through a robust OSHA inspection management strategy and written program. We recommend devising an Inspection Management Policy to prepare your organization for an onsite inspection by OSHA, an OSHA state plan, or another government agency. An organized, professional response will ensure that the employer is presented in the best possible light, all employees provide truthful information, and managers make no improper admissions against interest.

1. When OSHA May Come Onsite to Inspect

OSHA inspections are establishment-based, meaning that OSHA has the authority to inspect one employer worksite only. OSHA conducts two general types of inspections, programmed and unprogrammed. Approximately 43% of OSHA inspections are programmed inspections. Based on available labor statistics data, OSHA randomly generates a list of employer establishments in particularly industries or with particular types of hazards, and inspects employers from the list over the course of a year. OSHA's emphasis programs focus on hazards like combustible dust, trenching and excavation, and heat illness. Most emphasis programs limit their applicability to worksites within particular NAICS industry codes.

OSHA may only conduct an unprogrammed inspection where it has a neutral basis and probable cause to do so. These include reports of injuries (amputation, loss of an eye, or hospitalization) and fatalities. A workplace fatality, other than a public road car accident or personal medical condition, almost always will result in an onsite OSHA inspection within two weeks. Depending on the jurisdiction, a reported injury can have an approximately 50%-90% chance of an onsite inspection. If you report an injury or death, you have a good indication that OSHA will be onsite shortly and should prepare accordingly. An employer can reduce the probability of an onsite inspection if it only reports those injuries that are required by law, and does not report non-reportables.

2. Key Elements to a Written Inspection Management Policy

OSHA can come onsite any time the worksite is operational, including during second and third shifts. The manager-in-charge when OSHA arrives will be tasked with responding to OSHA and managing the initial inspection appropriately. Inspection management may pose a challenge for a manager who has never defended an OSHA inspection prior and has not been briefed on how to do so. We recommend that each employer prepare a written OSHA Inspection Management Policy which will lay out the key elements of what to do. It will be a handy resource for onsite management when faced with a new or uncommon situation like OSHA appearing onsite.

A. Professionalism

First impressions are very important in life and in OSHA inspections. The employer should demonstrate off the bat that it is highly sophisticated and takes occupational safety and health extremely seriously. The Inspection Management Policy should specify that OSHA be greeted at the door professionally, told to complete any necessary safety orientation, and then brought to a room for an opening conference

B. Contact Key Individuals Immediately

Put in the Policy that the manager should immediately contact the appropriate in-house counsel or safety manager and/or outside counsel. Prompt notification will ensure that qualified experts can help defend the inspection. These individuals can then join the opening conference with OSHA and ensure that OSHA has a lawful basis for the scope of any inspection to be performed.

C. Planned Route

For an onsite inspection, OSHA will have a particular location or equipment focus. OSHA will want to see the site of an accident or equipment on which there has been a complaint. The employer should plan a route on how to get to that area of the facility, minimizing exposure to other equipment or alleged hazards that OSHA will see. Sometimes the most efficient route will be walking outside, using a golf cart, or driving in a car to remote part of the facility. For unprogrammed inspections based on injury reports or referrals the employer knows about, management should assume OSHA is coming out and can plan/map the route ahead of time. A qualified manager can walk the route ahead of time to ensure there are no visible safety hazards (e.g. exposed wiring, housekeeping issues).

D. Managing a Partial Scope Inspection

OSHA inspections can be comprehensive, meaning of the entire facility. More often they are partial scope inspections, limited to the hazards or incident for which OSHA has probable cause to inspect. Any expansion beyond that scope must be justified with a lawful basis. A key to inspection management is ensuring that OSHA does not exceed the lawful scope of the inspection with where they go, what equipment they review, what documents they review, and who they interview.

E. Less is More

As with criminal law, OSHA operates under the Plain View Doctrine during its inspections. Anything that OSHA sees during the inspection can be the basis for an attempted expansion of the inspection's scope. Further, anything a manager tells them about can result in an attempt to expanded scope as well.

F. Casual Interview

OSHA has the right to do a reasonable walkaround inspection of the facility, and has the right to do interviews. The employer has the right to have a manager guide the inspection and stay with OSHA at all times. Where OSHA fails to stay with management and wanders off in an industrial area of the facility, the inspection should be suspended and counsel should contact OSHA's Area Director as soon as possible.

During these walkarounds, OSHA compliance officers can be casual, friendly, and inquisitive. Anything a manager says could be the basis for citation, and the manager must be vigilant only to provide answers to questions to which he knows the answer. The manager should be trained to say "I'll look into that" or "I'll get back to you on that." There is no reason to admit a violation or speculate or guess about something the manager does not know to be truthful.

G. Side-by-Side Photos and Videos

The employer has the right to take side-by-side photos and videos of the same views and of the same activities. A member of management who is accompanying the inspection should be designated to take those photos and videos. We also regularly take photographs and video of OSHA personnel as they conduct the inspection, where appropriate. OSHA compliance officers are prohibited from exposing themselves to hazards. OSHA will be hard-pressed to argue that a condition is hazardous or that a violation is willful if they exposed themselves to the same cited alleged hazard at the facility.

If OSHA wishes to do industrial hygiene monitoring (e.g. sound levels, air samples), the employer has the right to do its own side by side monitoring. OSHA must explain the tests to be conducted and methods to be used, and give the employer a reasonable opportunity to arrange for side-by-side monitoring.

H. Document Requests

OSHA has the right to request documents. All document requests should be in writing (by email or handwritten and copied), to ensure that no documents are requested and not responded to. But document requests must be tailored to the scope of the inspection. Because any document provided to OSHA could result in citation, only responsive documents should be produced, objections should be raised for documents that do not fall within the scope of the inspection (and the documents should be withheld until those concerns are resolved).

OSHA has the right to receive the OSHA forms within four business hours. These include the OSHA logs for the past five years plus the current year to date, OSHA 300A Summaries, and 301 incident reports, though the latter are less commonly requested. OSHA will request Form 300 logs at every inspection. The employer should review the logs and ensure they are compliant before producing them; if the employer is reporting a fatality, they should review the forms as soon as possible as they know OSHA will be requesting them. OSHA normally will allow additional time beyond the four business hours; management should send an email confirming any extension of time, to avoid citation under the four hour rule.

I. Root Cause Analyses

The employer can and should do its own safety investigation into an accident or complaint item. An internal investigation will help the employer prevent accidents in the future. There is no requirement to prepare a written root cause analysis report, and no requirement to turn one over because OSHA has requested it. The employer can choose to do a confidential and attorney-client privileged report, so long it is produced for purposes of obtaining legal advice, shared with counsel, and limited in distribution to the control group. If an employer is preparing a root cause analysis with the intent for a mass distribution and retraining, it should be prepared knowing that it will not be privileged and may soon fall into the hands of OSHA compliance officers.

J. Minimum Burden Doctrine

Under the OSH Act, any request for information from the employer must be made at the minimum burden possible to the employer. Under the Minimum Burden Doctrine, OSHA is barred from making unreasonable requests for fast turn-arounds of documents or testing. Beyond the OSHA forms subject to the four-hour rule, all other requests for documents are just that, requests. OSHA has subpoena power, but those subpoenas are not self-enforcing. Employers should work with OSHA to provide documents in a reasonable and timely manner.

OSHA inspections and interviews should be scheduled going forward at mutually convenient times that are not disruptive to the employer. The employer is not required to demonstrate industrial processes that are not scheduled or intended to be performed that day. Because OSHA can reasonably request to return at a date when a relevant process will be performed, many clients do choose to be cooperative and demonstrate certain functions during onsite inspections.

K. Most Important – Interview Preparation

OSHA has the right to do interviews in a reasonable manner that is not disruptive to the worksite. Any interviews should be by mutual agreement. The employer must prepare employees for interviews to ensure that they understand their rights and responsibilities. They should also be refreshed on the substantive area that is being inspection; if the inspection involves a forklift, employees should be reminded of the relevant policies and their training. Please see our separate article and checklist on Leveling the Playing Field for OSHA interviews.

Short preparation sessions will ensure that employees are truthful and know their rights during OSHA interviews. Interviews should take place in a private conference room and not in an industrial area of a facility. Non-management employees have the right to a confidential interview with OSHA, or to have the representative of their choice present. The employer has the right to have counsel and management present during an interview of a manager. Management interviews run the greatest risk of binding admissions, and OSHA refers managers for criminal prosecution based on comments during inspection. Management interviews should only take place on a scheduled basis and with appropriate preparation.

L. Exit and Closing Conferences

OSHA conducts conferences when it exits a facility and/or closes out its inspection. The Inspection Management Policy should identify the key contacts to join those conferences. We always ask OSHA if they have any safety or health concerns during their visit, and management should write down the answer. This allows the employer to address any issue raised in good faith. It also is a useful tool down the road if OSHA takes the position that the employer knew or should have known about a hazard that the agency's own compliance officer did not think was hazardous.

If OSHA makes a recommendation to do an enhancement, the employer should consider doing it. it may result in a quick fix deduction, no citation, or a reduced penalty.

3. Conclusion

Defenses to an OSHA citation should be developed before the citation is issued – starting after an accident takes place and during OSHA's inspection. Employers should have a written Inspection Management Policy in place to ensure that the employer and the boots on the ground representing the employer defend inspections appropriately and manage all information provided to the government.

For assistance drafting an inspection management program or updating your policy, please work with qualified outside counsel. We conduct complementary training in person or virtually on all inspection management issues. If the inspection has been completed, we regularly advise employers on the defenses they may have to OSHA citations and the bases to contest them.

Footnotes

1. Adam R. Young is a partner in the Workplace Safety and Environmental Group in the Chicago office of Seyfarth Shaw LLP. Mr. Young focuses his practice in the areas of occupational safety and health, employment law, and associated commercial litigation.

2. Mark A. Lies, II is an attorney in the Workplace Safety and Environmental Group in the Chicago office of Seyfarth Shaw LLP. Mr. Lies is a partner who focuses his practice in the areas of products liability, occupational safety and health, workplace violence, construction litigation and related employment litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.