Kevin Ian Schmidt

For those of you that have had an OSHA inspection at your workplace you probably have learned a thing or two as to how you would handle it if you had the opportunity to do it over. No one is really prepared for that unannounced, page from your receptionist informing you that a representative from the U.S. Department of Labor, division of the Occupational Safety and Health Administration is here to talk with you. They usually, it seems, come at a time when all your other facility operational problems are occurring, break downs, employee absentee concerns, shipment backlogs, you name them. But whatever they are, they all have to be set aside so you can respond to your visitor.

Your Rights As An Employer.

As a safety professional, I want to share some brief but very important suggestions as to the best way to handle an OSHA visit. First; understand that although you are governed under the Act, you as an employer do have rights. For this article, I will be discussing rights under the OSH Act which is administered under the Federal guidelines. States which have their own OSHA State Plan may have different employer rights and obligations.

For more information: Who and Where Does OSHA Regulate

Pre-inspection Rights

If as an employer you seek to ensure compliance with any and all applicable OSHA regulations without the fear of an OSHA enforcement inspection or the issuance of a citation for identified regulatory infractions, there is help from OSHA itself.

• Ask for assistance from OSHA itself. Contact your local Regional, Area Offices. Each OSHA Area Office will have a Compliance Assistance Specialists(CASs)on board. The CAS can answer questions on the phone and are also available for seminars, workshops, and speaking events. There is no need to give your name or establishment’s name. Be prepared and explain the specifics of your concern.
• Request assistance from the OSHA On-site Consultation program. The OSHA On-site Consultation program is funded by OSHA and administered through its respective state agency or a state university. The consultation program is separate from enforcement and a visit will not result in penalties or citations in the event any regulatory infractions are found. One important note; There is a responsibility on the employers part to fully comply with any and all safety and health concerns identified during the consultation visit.

OSHA On-Site Rights – Recommended Action

When that day comes, and you probably won’t be prepared or ready for it, it is important that you understand your rights as an employer. It is important to understand how an OSHA inspection is conducted and more important why the OSHA inspector is at your door. The following outlines the When, Why and How elements of an OSHA visit.

WHEN will OSHA visit your establishment? To be quite honest with you, due to the number of OSHA Compliance Officers, which at last count was right around 2,043 and considering there is approximately 7 million worksites, your odds of getting inspected are low. Let’s look at OSHA inspection priorities; they are (in order):

• Imminent danger situations
• Fatalities and catastrophes
• Complaints (employee)
• Referrals (made by other Federal or State Agencies or organizations)
• Follow-ups (initial inspection identified hazards – citation was issued)
• Planned or programmed investigations (OSHA initiatives (National Emphasis (NEP) or Local Emphasis (LEP) Programs), Site Specific Targeting Initiative (SST).

The OSHA General Duty Clause is a catch-all regulation that a workplace can be cited under.

It is very important to understand that most OSHA visits are unannounced. You will not be given any advanced warning prior to an inspection.

The very first being “Imminent danger” is fairly rare. Very few imminent danger inspections have been conducted by OSHA. You should be well aware that a fatality or catastrophe inspection will be occurring for obvious reasons.

The remaining reasons for a visit are usually unknown as to when they may occur.

WHY are they here today? When that day comes and they are sitting in your waiting area, it is important to exercise your rights as an employer before going any further with the inspection. The following action on your part should take place:

• Make sure your receptionist or whoever first contact is made with request that the compliance officer waits in the waiting area. Next the highest ranking management official on site should be contacted. DO NOT escort the compliance officer to an office or through the work area.
• The chosen management representative should ask for the compliance officer’s identification card. This will be a certified U.S. Department of Labor / OSHA ID. Also ask for a business card. You will want to make a copy or write down the ID information.
• Proceed to question why the compliance officer is at your facility, e.g. reason for the inspection following the “inspection priority” list noted above.

Note: Very important. If the compliance officer is their based on an employee complaint, they MUST provide you with a copy of the complaint itself. The individual filing the complaint will be removed from your copy.

• If the reasoning for the visit is acceptable you should then request and inform the compliance officer that you are going to contact the Regional Area Office to verify their status and reason for the visit. Don’t hesitate to do this. It is not play “hard-ball” it is just being sure.
• Once you have verified the compliance officers visit you should then proceed to an office area so as to conduct the opening conference.

Learn More: OSHA Requirements for Small Businesses

How To Conduct Yourself During The OSHA Inspection.

The OSHA visit consists of three basic inspection elements. They are:

• Opening Conference
• Walk-around Survey
• Closing Conference

Opening Conference.

Many believe that the walk-around survey is the most important aspect of the inspection. Although during this procedure, any hazards and potential OSHA regulatory violations may be found, it is my opinion that the most important part of the OSHA visit is the opening conference. It is during this phase that the compliance officer will determine your facilities safety and health culture. It is also the period where you, the employer can establish a leadership role in how and what the compliance officer looks at. Remember, this is your business, you know more about how things are run at your facility then the compliance officer. Take charge, be a leader. Here are some tips as to how to conduct an opening conference:

• Have all your OSHA required and other safety and health written policy and procedures readily available for review, especially your OSHA required accident and illness records. I recommend that each policy be in its separate three ring binder rather than having one, huge binder which holds all the policies. This separate bound system makes it easy to review.
• Lead the discussion and inform the compliance officer of all your safety and health activities, e.g;

* Safety and Health Committees,

* Recent Safety and Health Training,

* Seminars Attended,

* Outside Assistance Used.

Check Out: Conduct your Own OSHA Mock Audit

Walk-Around Survey

Often if the opening conference is handled properly, usually on a “targeted inspection” such as a record keeping inspection visit, the visit will be stopped at that point. No walk-around will be conducted.

In the event that the inspection needs to proceed here are some tips as to how to conduct yourself during that walk around.

• If the compliance officer is there on a complaint, take the compliance officer directly to the area(s) noted on the complaint itself. For example; if the complaint stated that a specific piece of equipment is improperly guarded, escort the compliance officer to that piece of equipment.

NOTE: If the compliance officer observes safety and health issues other than the complaint

reference while traveling to the area of concern, they can note and issue a citation on those items.

That is why it is very important to not take the compliance officer on a full plant tour.

• If the compliance officer takes pictures, you should ask what they were taking a picture of and take one yourself.
• Ask what the compliance officer is looking for.
• Ask what the compliance officer is writing down.
• Never leave the compliance officer un-escorted.

Closing Conference.

The closing conference is a discussion as to what the compliance officer found and what possibly was found in violation of any applicable OSHA regulation. During the discussion you will want to;

• Ask what specific OSHA regulation the infraction noted will be applied to.
• Give some further explanation as to why the infractions were noted and what has been done in the past to eliminate them.
• Take immediate action to rectify the infractions noted.

Although the compliance officer will give you an idea as to what may be cited (issuance of citation) they really do not make that decision. The final decision as to issuing a citation is made by the OSHA Area Director. So you won’t get a final answer during this closing conference period.

Learn More: OSHA Citations Explained