By Nicole L. Stangl
August 3, 2021
After many months of mostly virtual enforcement, OSHA is back to in-person site inspections and OSHA enforcement has become a priority for the Administration. As such, businesses should be aware of rights they have and how to best respond when OSHA comes knocking
OSHA Just Showed Up, What Can I Do?
With some exceptions, OSHA’s arrival will be unannounced and will often take a business by surprise. As a best practice, having a plan in place for when OSHA shows up can help prevent panic. To start, the plan should designate:
- An OSHA contact person who will accompany the inspector throughout the inspection; and
- A designated space to take the inspector to upon arrival. It is best to have a room close to the entryway and without windows into the facility.
OSHA does not have the right to enter or inspect your facility unless they have consent or a warrant. A business has the discretion to either 1) consent to the inspection, or 2) refuse to consent and require a warrant. While refusing the inspection and requiring OSHA to get a warrant may provide the company with more time before the inspection occurs, it is not a suggested practice. The warrant removes all negotiating power over the scope of the inspection and breaks down any goodwill you might have with the inspector.
Instead, it is usually best to consent to the inspection.
The Inspection Process.
During the opening conference, OSHA will share why they are there: 1) random inspection, 2) follow-up from an accident, or 3) responding to a complaint. Additionally, during the conference, you can negotiate as to the scope of the inspection. While the conference is happening, the company should use this time to correct any obvious hazards.
When the inspection begins, it is best to take OSHA on a pre-planned route and eliminate any extraneous stops. Anything that the OSHA inspector sees in plain sight is fair game for them to take note of and possibly cite you for. If possible, you should also clear out the negotiated inspection site to eliminate unnecessary bodies and activity. The less chaos in an area, the better.
The OSHA inspector can and will take photos. You should take identical photos and take notes. OSHA is collecting evidence to support a potential citation, so if you collect corresponding evidence you will be in a better situation to respond.
One of the most important things to do, if possible, is to abate (fix) the hazards an inspector points out while they are there. Abatement is not an admission and is not viewed negatively by OSHA. OSHA’s goal is compliance. If you abate the hazard and show you are trying to be compliant, it might prevent you from getting a citation related to that hazard, or at the very least, it will be noted on any issued citation.
Finally, the inspector can interview both employees and managers. The interviews may or may not happen on the same day at the site inspection. If the inspector interviews a member of management, you have the right to have a company representative in the interview because the manager’s statements can bind the company. However, that right does not exist for employees as the same principle does not apply. You can only have a management representative sit in on an employee interview if the employee requests it.
What Happens After They Leave?
After the inspection is complete, OSHA may issue citations. There are four types of citations and each carry a maximum penalty. If a citation is received, you have 15 working days to contest the citation, pay the fine, and/or you can have an informal conference with the regional director to discuss the citation.
As OSHA enforcement is continuing to ramp up, make sure to contact your local OSHA counsel to help set up an OSHA preparedness plan and to help navigate any OSHA citations you might receive.
©The Business Leader – July, 2021. Reprinted with permission.
The content in the following blog posts is based upon the state of the law at the time of its original publication. As legal developments change quickly, the content in these blog posts may not remain accurate as laws change over time. None of the information contained in these publications is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. You should not act upon the information in these blog posts without discussing your specific situation with legal counsel.
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