OSHA Inspections – Being Prepared

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November 14, 2024

The Occupational Safety and Health Administration (OSHA) sets standards and monitors the working environment for employees in most industries, including agriculture. In order to regulate and protect agri-business workers from specific industry hazards, OSHA has implemented requirements for agri-business employers through agricultural specific standards (29 CFR 1928) and general industry standards (29 CFR 1910).

There is a narrow small farm exemption from enforcement of all rules, regulations, standards and orders under federal OSHA that some agri-businesses may fall into.

Have an OSHA Preparedness Plan

OSHA can conduct both scheduled and unannounced visits. As a best practice, your agri-business should have a plan in place for when OSHA shows up.  Understanding what to expect during these visits, and what your rights are during the visits, can help you stay prepared and maintain a safe workplace.

To start, the plan should designate:

      1. An OSHA contact person who will accompany the OSHA inspector (Inspector) throughout the inspection;
      1. A designated space to take the Inspector upon arrival. It is best to have an enclosed space near where the Inspector will first arrive to (i.e., the main office), and it is best if this space does not have any windows; and
      1. A plan to address the inspection process.

OSHA does not have the right to enter or inspect unless they have consent or a warrant. An agri-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 agri-business 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.  It is usually best to consent to the inspection.

The Inspection Process     

The Opening Conference

During the opening conference, OSHA will share why they are there: 1) random inspection, 2) accident follow-up, or 3) complaint response. At this conference, you can negotiate the scope of the inspection. OSHA inspections may focus on places employees are working as well as the conditions they are working in, which may include structures, machines, apparatuses, devices, equipment, etc.

While the conference is happening, the company should use the time to correct any obvious hazards.

The Walkaround

Once the scope of the inspection has been identified, it is important to take the Inspector on a direct route to the designated location without any extraneous stops. When possible, it is helpful to have pre-planned routes to various areas of your agri-business.

Anything the Inspector sees in plain sight is fair game for them to take note of and potentially 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 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 as 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.

Representation During the Inspection

Employers and employees have the right to have a representative present during an OSHA site inspection. This “walkaround rule” is not new. However, this year the DOL issued a new rule expanding this right for employees. Under the new rule, a third-party representative is anyone that is reasonably necessary based on their “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.” In practicality, this allows employees to bring non-employee third-party representatives into the workplace to accompany the OSHA inspection.

We recommend you talk to your OSHA attorney to discuss the limitations that exist related to the third-party representative and be prepared for if you would have an inspection.

What Happens After They Leave?

After the inspection is complete, OSHA may issue citations. There are four types of citations, each carrying 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.

Contact your OSHA attorney to determine if you fit within the small farm exemption, to help set up an OSHA preparedness plan, and to help navigate any OSHA citations you might receive.

© 2024 The Badger Common Tater, Antigo, WI.  Reprinted with permission.

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This document provides information of a general nature regarding legislative or other legal developments, and is based on the state of the law at the time of the original publication of this article. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations, or issues, and additional facts and information or future developments may affect the subjects addressed. You should not act upon the information in this document without discussing your specific situation with legal counsel.

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