United States: Surviving The OSHA Inspection

It is always a difficult and stressful time when a workplace accident causes death or serious injury or illness to an employee. Employers faced with such a situation are understandably focused on calming anxious co-workers and providing information to distraught family members. Nonetheless, employers should also be prepared for a visit from the Occupational Safety and Health Administration (OSHA).

OSHA is the federal agency authorized to conduct workplace inspections and investigations to determine whether employers are complying with standards governing health and safety in the workplace. Under Section 5(a)(1) of the Occupational Safety and Health Act, every working man and woman is to be provided with a safe and healthy workplace. So when a workplace accident occurs, chances are that an OSHA inspection will ensue. This article provides some practical steps that employers can undertake to handle such an inspection.

Initial Contact with OSHA

Inspections by OSHA are usually conducted without advance notice. Employer consent or a valid warrant is required for OSHA to enter the worksite. When the OSHA inspector arrives at your establishment, he or she should display official credentials and ask to meet with an appropriate company representative. An employer should always ask to see the inspector's credentials. A single company representative should be assigned to interact with the inspector, oversee the inspection on behalf of the employer, and act as the company spokesperson. The selection of a single company spokesperson will significantly increase the likelihood that the employer will maintain a consistent account of the facts.

When initially confronted with an OSHA inspection, keep in mind that an employer's initial reaction to the OSHA inspector may be critical. Although it is an employer's right to require OSHA to obtain a warrant before inspecting the employer's premises, a decision to do so may prove penny-wise and pound-foolish. Statistics show that those employers who deny inspectors initial access or otherwise contest the government's right to inspect their property are, on average, cited more than those employers who cooperated from the outset of the inspection. Those employers that denied initial access on average have larger proposed fines as compared to cooperating employers. Thus, cooperation with the OSHA inspector in the correct circumstances may help to shorten the inspection and lower initial fines.

The Inspection

The inspection begins with an opening conference. During the conference, an employer should obtain as much information as possible about the inspector's purpose for being there. The inspector should explain the purpose of the visit, the scope of the inspection and the standards that apply. Is the purpose to investigate the circumstances surrounding a recent workplace accident or is it to conduct a wall-to-wall inspection of the workplace? Is the inspection based on an employee complaint or police report, or was the facility selected as part of a programmed or targeted OSHA initiative? Determining the scope of the inspection at the outset is important, as it will help you to determine the length of the inspection, the possible disruptions that may occur, and the time and resources needed to address the inspection.

The company representative should accompany the inspector during the inspection. The route and duration of the inspection will be determined by the inspector. The inspector should minimize work interruptions caused by speaking with employees. During the inspection, the inspector will observe safety and health conditions, consult with employees privately, take photos and instrument readings, examine records, measure noise levels and survey existing engineering controls. The inspection may cover part or all of the establishment, even if the inspection resulted from a specific complaint, injury or fatality. Ideally, the company representative should simultaneously take photos, video or instrument readings of the same areas observed by the inspector. The information may prove helpful if the company decides to later contest any alleged violations.

A Note on Record-keeping

Make sure you accurately maintain any required OSHA documentation. OSHA places special importance on posting and record-keeping requirements. The inspector will examine records of deaths, injuries and illnesses that the employer is required to keep. This includes OSHA Forms 300, 300A and 301, which are used to record work-related injuries and illnesses. The inspector will verify that a copy of the totals on the last page of the OSHA Form 300 has been posted and that the OSHA workplace poster, which explains employee safety and health rights, is conspicuously displayed. Records of employee exposure to toxic substances and harmful physical agents will also be examined for compliance with the record-keeping requirements.

Depending on the industry and existence of certain workplace hazards, the inspector may also ask for a copy of the employer's General Safety and Health Program, Hazardous Communications Program, fall protection policy and lockout/tagout policy. Under certain standards, some employers are required to establish written procedures and policies to address safety concerns unique to their workplace. For example, employers in the health-care industry or in chemical manufacturing will be required to maintain a written program that includes provisions for container labeling, material safety data sheets and an employee training program. The program must also contain a list of the hazardous chemicals in each work area and the means used to inform employees of the hazards associated with these chemicals. The failure to maintain these written policies, or failure of the policy to adequately address potential hazards, could be grounds for OSHA violations.

The Closing Conference

During the course of the inspection, the inspector will point out any unsafe or unhealthy working conditions he or she observes. At the same time, the inspector will discuss possible corrective action to eliminate the condition. Some conditions can be corrected immediately and the inspector will record such corrections when determining the employer's good faith and compliance. Please note, however, that even though the condition may be corrected, the apparent violation may still serve as the basis for a citation and proposed penalty.

At the conclusion of an inspection, the inspector will conduct a closing conference with the employer and, if applicable, the employee representative. The closing conference provides an opportunity for an open discussion concerning potential penalties and corrective action. The inspector will discuss all unsafe or unhealthful conditions observed during the inspection, and indicate any apparent violations for which a citation or proposed penalty may be issued or recommended. OSHA has up to six months following the closing conference to issue citations and penalties.

The citations are intended to inform the employer of standards alleged to have been violated and the proposed length of time for their abatement. The types of violations range from de minimus violations with no monetary penalty, to willful and repeat violations with penalties of up to $70,000 for each violation. Depending on the circumstances, multiple citations can be issued and penalties can be significant. When an employer receives citations, it is important to take them very seriously and act promptly, as an employer who wishes to contest the citations must submit a written notice of contest within 15 working days of receipt of the citation.

Conclusion

An OSHA inspection can be a nerve-racking experience; however, with the proper planning and advice, an employer should be able to properly handle an OSHA inspection and minimize exposure. So when that OSHA inspector knocks on your door or appears in your reception area, don't panic. Take a deep breath. Your preparation, organization and willingness to cooperate will get you through it.

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
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
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 (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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