Know your rights before, during, and after the visit
By Samantha Catone, Esq.
An unexpected visit from OSHA can be daunting and stressful. While many employers are aware that they could, at virtually any time, receive such a visit, not many employers are fully aware of the arsenal at their disposal to effectively manage these inspections. This article will provide you with some effective (but by no means exhaustive) tips to assert your rights prior to and during OSHA inspections.
Understanding your rights will assist you in controlling the flow of information, making strategic decisions, minimizing business disruption, and obtaining pertinent information. Below is a summary of the rights afforded to OSHA and employers.
OSHA’S RIGHTS:
- Every OSHA inspection must be “reasonable”
- The inspection is conducted during regular working hours, within reasonable limits, and in a reasonable manner
- Arrive with no notice and without a warrant
- Where OSHA does not have a warrant, it must have probable cause or there must be a violation in plain view
- Demand employer records
- Conduct employee interviews
- Collect physical evidence
- Take photographs and videos; OSHA has 6 months to complete the inspection and issue a citation
EMPLOYER’S RIGHTS:
- Insist on a warrant
- Delay the inspection one hour
- Negotiate the scope of the inspection
- Establish an inspection protocol
- Basis for the inspection
- Obtain copy of complaint
- Protect trade secrets
- Accompany during walk-around
- Ask questions
- Participate in management interviews
PRIOR TO OSHA’S ARRIVAL
The majority of on-site inspections are unannounced. It is therefore critical to develop a policy or procedure that includes designating a company representative to supervise and handle all aspects of an unannounced site inspection. Ideally, this would be your company’s safety director or someone in upper management. Most importantly, this individual should be well-versed in the specific standards that apply to your business, and should also be familiar with the company’s health and safety protocols. Your designated representative should accompany and supervise all aspects of OSHA’s inspection.
UPON OSHA’S ARRIVAL:
THE OPENING CONFERENCE
The opening conference is your first opportunity to begin to control the flow of information. Some recommended action items during the opening conference include:
- Insist on an opening conference
- Request to see the inspector’s official credentials
- Identify your company representative and inform the inspector that all inspection activities should be coordinated only through that individual
- Ask for purpose/scope of inspection
- Introduce inspection team
- Explain document production protocol
- Establish interview protocol
- Arrange for daily close-out meetings
- Arrange to screen photos/video for trade secrets
AFTER OSHA’S ARRIVAL: DOCUMENT REQUESTS
At some point during a site inspection, OSHA will request certain documents. As a general rule, do not volunteer documents not specifically requested. Be sure to distinguish between records required to be maintained under OSHA standards and those that are not, and ensure your company representative is familiar with the difference. Also take care to maintain a document control log of all documents produced. Employers should take the following additional steps when dealing with document requests:
- Insist on written requests for documents
- EXCEPTION: OSHA recordkeeping forms
- Voluntary vs subpoena – know the difference
- Do not create new documents
- Do not leave documents in plain sight
- Do not volunteer information
- EXCEPTION: Without more information, OSHA will misunderstand a fact to your detriment
- Review for responsiveness, privilege or trade secret
AFTER OSHA’S ARRIVAL: WALKAROUND INSPECTION – PRACTITIONER’S TIPS:
- Escort OSHA at all times
- Gather information about focus of inspection
- Control flow of information
- Ensure safety of CSHO
- Ask for notice of sampling
- Take detailed notes
- Hold daily close-out meetings
- Ask about concerns
- Ask about interviews and tasks for next visit
A closing conference will take place once the inspection is complete (this can occur weeks after the on-site inspection). Be sure to correct any obvious errors or misimpressions from the inspection, identify any alleged violations you have already corrected, request time to offer additional information, and take detailed notes.
The most important tool in an employer’s arsenal to effectively managing OSHA inspections is to educate your employees and company representatives on your rights as a business and their individual rights as employees. If you take care to designate a company representative and educate them on these issues, this will reduce the anxiety that comes with an unexpected OSHA visit, minimize disruption to your business, and, optimally, minimize OSHA liability.
About the author
Samantha Catone is an associate in Goldberg Segalla’s General Liability and Construction practice groups, and focuses her practice on defending large businesses, landowners, and contractors in premises liability and construction site personal injury litigation, including matters involving New York State Labor Law.
Modern Contractor Solutions, July 2019
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