When it comes to OSHA inspections, preparation is critical. Figuring out what to do (and who should do it) only after an inspector arrives on site puts employers at an immediate—and often irreversible—disadvantage. Consider implementing these OSHA inspection best practices now, before a proverbial “knock on the door.”
FOURTH AMENDMENT RIGHTS
Employers—just like people on the street and in their homes—are entitled to Fourth Amendment protection against unreasonable searches and seizures. An OSHA inspector therefore needs one of two things to proceed with an inspection: a warrant or your consent. Since an inspector will usually arrive without a warrant, the inspector will need your consent. This provides an opportunity (prior to consenting) to negotiate a reasonable scope and protocol for the inspection.
Some issues to discuss (and confirm) with the inspector prior to consenting may include any or all of the following: i) the claimed bases for the inspection (including any written complaints); ii) the type of inspection; iii) the inspection route to be taken; iv) the location and protocol for any employee interviews, including any “stop and talk” interviews; v) the protocol for any document demands and responses; vi) the duration of the inspection; vii) company representatives who will accompany the inspector; and viii) the establishment of a “staging area” to discuss any inspection-related issues that may arise during the inspection (for example, a conference room located away from the field). Also, absent OSHA having valid authority to conduct a wall-to-wall inspection, you should solely consent to a limited scope inspection and reserve your right to revoke that consent if the limited scope is exceeded at any time.
Keep in mind, however, that anything an inspector observes “in plain view,” even if outside the initial scope of an inspection, may form the basis of a citation—and broaden the scope of the inspection to the additional issues.
Also, employers generally have the right to delay an inspection for up to approximately one hour, pending a specific company officer or key employee (e.g., a site safety director) arriving on site. Do not hesitate to exercise this right.
Any OSHA inspector will invariably request that you produce certain documents and records. First, you should ask the inspector to put the demands in writing. Second, you are not obligated to produce the requested records “on the spot”—save perhaps your injury and illness records that must be produced within 4 hours of being demanded. If you have legal counsel, you might advise OSHA that you want your counsel to respond to the document demands after considering them—including any potential objections.
During the walkaround (the actual inspection), the inspector will walk the site, gather evidence, and seek to identify potential safety and/or health hazards. Inspectors are authorized during this phase to take photographs, videos, and measurements; collect environmental samples; and employ other reasonable investigative techniques. You have the right to take side-by-side photographs and duplicate OSHA’s measurements, sampling, and other investigations. Again, do not hesitate to exercise these rights. OSHA inspectors know you have them.
Although an OSHA inspector may interview hourly employees privately (and may insist on doing so), an employer representative has a right to participate in all management interviews. Also, hourly employees do have a right to request that a personal attorney or union representative be present during their interview. If honored by the inspector, this would negate any private interview of the employee. Employees are not required to sign a statement or the inspector’s interview notes, or give video and/or audiotaped statements.
Understanding the inspection process and limits of OSHA’s inspection authority will put any employer in the position to assert its rights during an inspection—thus minimizing liability and allowing for some control over the process. ■
About the Author: Michael Rubin is a partner in the law firm Goldberg Segalla, where he serves as Chair of the OSHA and Worksite Safety Practice Group. Michael represents employers across multiple industries in connection with OSHA inspections, investigations, and enforcement actions. He has on-the-ground experience investigating accidents and his practice includes negotiating for the withdrawal and settlement of citations, contesting citations, and litigating matters before the Occupational Safety & Health Review Commission. He can be reached at 716.844.3477 or .
Modern Contractor Solutions, May 2017
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