Kevin Ian Schmidt

OSHA cannot perform warrantless inspections without the employer’s permission. Refer to Marshall v. Barlow, 436 U. S. 307 (1978). A warrant is not necessary if OSHA obtains employer permission, any time premises are in view to the public, or even when there exists “imminent danger.”

In the event that the OSHA compliance officer shows up at the job site without a search warrant, the employer is allowed to refuse access to the work site in so doing postponing the inspection process. Acquiring the warrant typically will take a few days. Having said that, it has been often thought that employers who demand OSHA to undertake this extra step are more inclined to be given a citation after the inspection is complete.

OSHA Inspection Process

A. Inspector’s Credentials

The OSHA compliance officer needs to present official credentials once arriving at the work site. 29 C. F. R. § 1903 .7(a). The OSHA Inspection Manual advises the compliance officer to request “to meet an appropriate employer representative.” At a construction site this would generally be a representative of the general contractor.

B. Opening Conference

While in a preliminary conference the compliance officer will give an explanation of the reason for the visit along with the extent of the investigation. 29 C. F. R. 1903 .7(a). The employer needs to be certain to understand this important information from the compliance officer in an effort to limit the inspection, should this become required. The compliance officer usually will provide the employer a copy of the employee complaint that may possibly be involved (with the employee’s name removed, when the employee asks for anonymity). The compliance officer will ask the employer to assign an employer representative to escort the compliance officer in the course of the inspection.

C. Walk Through

After the opening meeting, the compliance officer will probably go through the job site to inspect work locations for safety and health risks. A representative of the employer should accompany the compliance officer on the inspection of the work site. 29 U. S.C. § 657 (e); 29 C. F. R. § 1903 .8. Typically, it is advisable for an experienced manager to join the compliance officer in the course of the inspection. The compliance officer can utilize reasonable investigative methods. 29 C. F. R. 1903 .7. The following are methods a compliance officer may usually take in the course of an investigation:

• Review safety and health conditions and practices.
• Speak with non-supervisory employees privately.
• Take photos, videotapes, and instrument readings.
• Inspect records.
• Obtain air samples.
• Measure noise levels.
• Review current engineering controls.
• Observe employee exposure to toxic fumes, gases, or dust.
• Question supervisory employees with a member of management or possibly a legal representative present.

Check Out: OSHA General Duty Clause

The employer representative, that is accompanying the compliance officer, should take photos and videotapes of everything observed and recorded by the compliance officer before the closing conference with the compliance officer. Preferably, the employer will ideally explain the interview process to employees well before the meeting with the compliance officer. The employees need to be instructed to answer just the questions posed by the compliance officer so to not speculate. Needless to say, employees also need to be advised to be truthful knowing that absolutely no retaliation might be taken against them for cooperating with OSHA.

a. Scope of Walk Through

The walk through might cover part or perhaps the entirety of an establishment. In the event that the compliance officer discovers a violation in open view, they will probably request permission to broaden the inspection. The employer is allowed to decline access in the event that the request goes beyond the range of the original inspection.

b. Report of Unsafe Conditions

The OSHA Inspection Manual advises the compliance officer to communicate to the employer all unsafe or unhealthful conditions identified by the compliance officer. The compliance officer is instructed to discuss potential corrective action in the event that the employer requests. The employer representative who accompanies the compliance officer really should take advantage of this chance, but must understand that any kind of information offered by the employer representative during this conversation will be based upon individual knowledge. Further, the employer representative needs to be instructed to not volunteer any sort of information to the compliance officer, but reply just to inquiries posed by the compliance officer. Any kind of information gathered from the employer representative may be used by the compliance officer for a factor for issuing a citation. By no means must the employer representative confess to an OSHA violation.

When possible, the employer should fix violations documented by the compliance officers then and there. The OSHA Inspection Manual provides that this kind of prompt behavior by the employer might provide to help judge the “employer’s good faith in compliance.” Even so, the observed violations could still be used as a justification of a citation.

D. Closing Conference

At the closing meeting, the compliance officer will discuss with the employer every unsafe or unhealthful conditions identified in the course of the inspection and also indicate all of the clear violations for which he/she might issue or recommend a citation along with a proposed penalty. 29 C. F. R. 1903 .7(e). In the course of the closing meeting, the employer will be afforded the chance to bring to the attention of the compliance officer any kind of relevant details about the conditions of the work environment. 29 C. F. R. 1903 .7(e). The employer needs to be ready to support a defense based upon “unpreventable employee misconduct,” when appropriate. The defense necessitates the employer to show an effective documented and published safety program which has been regularly executed by the employer. Written evidence of enforcement activities, for example written warnings to offenders, are going to be necessary to support the employer’s defense.

As a result of inspections, OSHA may assess fines against a company, learn how fines are structured here

After the visit, the employer should fix all OSHA violations identified, that were unable to be fixed immediately. Document the corrective actions taken, as a response to the next contact with OSHA.

Doing so can reduce your potential liabilities, and give you a bargaining position, if or when a potential fine is brought about.

Be certain that your company is in compliance with the many OSHA regulations by visiting http://www.osha.gov. The OSHA website lists all regulations, as well as useful information, advice, statistics and myriad resources on how to become and remain compliant. You may also hire a safety consultant to advise you on OSHA regulations that effect your workplace and advise on any necessary corrective actions.

Inspection Priorities

OSHA cannot inspect all 7 million workplaces it covers each year so it focuses inspection resources on the most hazardous workplaces in the following order of priority:

1. Imminent danger situations: Hazards that could cause death or serious physical harm receive top priority. Compliance officers will ask employers to correct these hazards immediately or remove endangered employees.
2. Fatalities or hospitalizations: Employers must report work-related fatalities within 8 hours and work-related inpatient hospitalizations, amputations, or losses of an eye within 24 hours. CSHOs gather evidence and interview the employer, workers, and others to determine the causes of the event and whether violations occurred.
3. Worker Complaints: A worker or worker representative can file a complaint about a safety or health hazard in the workplace. Allegations of hazards or violations also receive a high priority. Employees may request anonymity when they file complaints.
4. Referrals: Hazards are referred from other federal, state or local agencies, individuals, organizations or the media. Referrals usually are from a government agency, such as NIOSH or a local health department.
5. Targeted inspections: These inspections are aimed at specific high-hazard industries or individual workplaces that have experienced high rates of injuries and illnesses.
6. Follow-up inspections: The primary purpose of a follow-up inspection is to determine if the previously cited violations have been corrected.

Additional Tips to be ready for an OSHA Inspection:

• Be sure
  Safety Officers need to recognize that OSHA inspectors really do not enter into an organization desiring to discover elements out of place. They will not be attempting to ‘do you in’ or slap penalties around simply for fun. Their sole purpose of turning up to an organization is the check that the required safety equipment and methods are in place as well as being implemented in the proper fashion. As a double-check, have a quick look around to see if your employees are employing their safety equipment and, if not, inform them to do so right away. When completed, take your current safety documents as well as other pertinent paperwork and go in to the interview with the OSHA inspector. When you hold your head high and have an easy manner, there will be absolutely no reason to suspect either you or your company of any sort of dishonesty.
• Stay Relaxed, Calm and Quiet
  After you’ve introduced yourself to the OSHA inspector, it’s time for you to sit still, keep quiet and pay attention to exactly what the inspector has to say. When you’re asked a direct question, provide a well thought out, sensible answer – allow your brain complete the answer before your mouth does any kind of talking. Even when your pulse is pounding in your head, stay calm and give all paperwork requested by the inspector. After the question-and-answer phase along with an examination of the safety documentation, the OSHA inspector will desire to take a tour of the business to examine things personally.
• Provide safety equipment
  Before beginning the tour of the facilities, make sure you provide the appropriate safety equipment to the OSHA inspector. Not only will this protect the inspector from injury on your site, but it will likely indicate that you are always conscious of and watchful for safety risks and their correct prevention. This is really the single most significant component of a Safety Officer’s job within a company, so do not forget or shrug it off. Even when the OSHA inspector has brought his or her personal safety equipment, at the very least you’ve demonstrated that you have been conscious of the risks along with the correct safety protocols.
• Display pride
  While you give the tour of the facilities, exhibit pride in the way things are performed knowing that the health and safety of every person involved is at the very top of your list of concerns. It will help if you’ve carried out a dress rehearsal of sorts ahead of time, so that you are already aware what’s what and if any kind of concerns should be resolved before an inspector calls.