United States: How To Manage An OSHA Inspection

Last Updated: November 11 2013
Article by Howard A. Mavity

Many articles on handling OSHA inspections provide the same basic guidelines and little explanation of why an employer should take certain steps.  Readers already know to take photos whenever the Compliance Officer takes shots and to take notes, but do you know "why" to take those photos and "what" to look for?  What do you need to note in order to challenge citations when they are issued six months later?

Plan In Advance

Every company worksite should have a number of managers who know the basic steps to take whenever any government investigator shows up. The most important step is for site managers to know whom to call to obtain guidance.  No executive or in-house counsel will be pleased to learn of an investigation upon receipt of a citation.  No matter how tough your site manager may be, he or she may shut down when a coworker or subordinate is killed. 

Most site management can handle evacuating and protecting employees, and dealing with first responders. The company needs a system in place so that with one call, the site manager activates corporate support, including legal and risk management guidance, assistance to employees and families, and press and media management.  Set up this system and practice response.  Do not assume that you will never face a fatality or catastrophe.  Tornadoes, vehicular accidents, and workplace violence can strike any employer.

Make sure that management takes an OSHA inspection seriously.  Many employers are unprepared for the aggressive approach now dictated by D.C.  In some industries, even a single serious citation can harm bidding opportunities.  Most of the six-figure citations have involved repeat violations of routine items such as a missing electric-cabinet switch label, a damaged extension cord, partially blocked electric cabinet, or one employee who missed his annual training.  Each violation can serve as the basis for a repeat violation of up to $70,000 per item at any company location in any Fed-OSHA state for five years.  No inspection is minor.  And by the way ... OSHA's new IT system will allow them to better track your corporation's performance, even when the company operates under many names.

"Manage" The Inspection 

Step one is to ask "why" OSHA is present.  Many inspections are triggered by a complaint and OSHA must tell you the items.  Admit OSHA for the purpose of the complaint and limit the inspection to the "scope" of the complaint.  Inspectors will broaden the inspection if they observe hazards or if employees mention other hazards.  But require them to justify expanding the scope.  Be courteous and professional with the Compliance Officer (CO) but know and exercise your rights.  Always focus first on safety, but that attitude does not preclude making OSHA live by its own procedures.

Recognize that the CO must establish 1) an applicable standard; 2) a hazard; 3) employee exposure; and 4) that the employer knew of the violation or hazard, or should have known of it with the exercise of "reasonable diligence."  Make sure that a hazard exists.  Measure fall distances, check guards, etc.  The burden is on OSHA to prove these four elements, so check to see if the CO can prove that any employees were exposed in the last six months or would reasonably be expected to be exposed in the normal course of business.  Is the area isolated?  Do employees work near the alleged hazard?  How often do employees travel in that area?  How long was the hazard present?

Of these four elements, OSHA often does not build an adequate file on the employer's "knowledge" of the violation.  Any supervisor's knowledge of a violation is "imputed" to the company. Even where OSHA cannot prove that a supervisor knew of the issue, it can make out this element by developing evidence that the employer should have known of the violation with the "exercise of reasonable diligence."  So OSHA must prove that the employer didn't enforce safety rules, training was inadequate, or that the employer made little effort to provide oversight.  Show that the company did exercise this due diligence. Also, ask how long a violation was present and when were supervisory employees last in the area.

Don't be rushed and bullied about documents.  Some documents such as OSHA 300's and MSDS's must be promptly provided, but you have the right to a reasonable amount of time to provide other materials.  Review them.  Consider if explanation is required or if materials may be privileged or work product protected.  Don't volunteer self-audits, insurance and consultant reports or other similar materials without talking to counsel.

If documentation is weak, try to determine where on-the-job instruction occurred or where oral lockout instructions were provided.  You may still have a violation but counsel may be able to use such information as defenses, to reduce the citation classification, or to build good will.  Obtain legal guidance and be mindful that if you show that you knew of a standard's requirement and did not follow it, there is a possibility that OSHA might assert a "willful" classification.

In developing defenses, dig-dig-dig.  There are always more facts.  Don't delegate.  Ask the questions yourself.

Exercise your right to sit in on or have counsel attend interviews on all employees who supervise others; they can bind the company.  You have an absolute right to sit in with managers but do so while showing courtesy to the CO. You may also want to contact counsel about whether OSHA will define an employee as a supervisor.  OSHA uses a broader definition than the NLRB or the wage-hour division.

OSHA has the right to interview hourly employees in private, but you can briefly explain to the employees the reason that they are being interviewed, and that you appreciate their cooperation and to tell the truth.  Sometimes it is ok to tell them the topics OSHA may discuss and that may involve a bit of briefing, but mainly encourage them to tell the truth.  Ensure that employees know that you appreciate their cooperation with OSHA.  OSHA is very sensitive to even a whiff of intimidation or threat of retaliation.

Multiemployer worksites present special challenges.  When more than one employer is on site, OSHA can cite both the employee's direct employer (the "exposing employer") and the "supervising" employer who was directing the work (such as at construction sites or for contingent workers) or the "creating" employer who generated the hazard, or the "correcting" employer who was responsible to address the hazard, ... or all of the above!  Unfortunately, it often seems that one employer onsite will try to persuade OSHA of questionable facts and throw other employers under the proverbial bus.  Be alert.

Don't Just Accept Citations Or A Penalty Reduction

Do go to the OSHA Informal Conference after citations are issued, and do contest all citations if you have reasonable arguments.  Remember that OSHA focuses on safety and does not consider whether the Secretary can carry its burdens before a judge.  But OSHA attorneys do recognize this reality.  Negotiations may be fruitful.   

So long as you ensure OSHA knows that you will and are addressing hazards, it will understand that your decision is dictated by business necessity and does not show a disregard for safety.

Finally:  do not miss the contest period!  And be aware that many of the "State-OSHA plans" have different appeal processes.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Howard A. Mavity
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions