Managing OSHA Visits: What to do During an OSHA Investigation
Note: This article is part 2 in a 3-part series about handling unexpected OSHA visits to your worksite. To check out last month’s article on what to do before OSHA arrives, click here.
OSHA is in your lobby. Hopefully you’ve already taken to heart Safety Plus, Inc’s 6 Steps to Prepare for an OSHA Visit and aren’t panicking, but the past is the past. It’s time to focus on the present. What can you do during the actual OSHA visit to make sure you are limiting the likelihood (and/or amount) of fines OSHA may be about to impose on your company?
There is no doubt that the way you handle the investigation itself can save your company a significant sum. According to OSHA’s website, more than 150 citations issued by the agency in 2017 proposed fines in excess of $100,000. More than 30 of these citations proposed fines in excess of $200,000. For many companies across the US, fines of these magnitudes could be crippling. You need to know how to comport yourself during the OSHA investigation so that your company’s future isn’t crippled by easily-avoided fines.
Here are Safety Plus, Inc’s 12 steps to help limit the damage an unexpected OSHA visit could levy on your company…
During the Arrival:
1) Restrict admittance until management personnel are on site. Never allow the opening conference or the inspection process to commence until the appropriate pre-established management personnel are present. Establish procedures for your administrators, receptionists, and facility guards in the event a compliance officer appears on site.
2) Determine the reason for the inspection. Why are they at your place of business? Was it a complaint, fatality, targeted inspection (government focus on specific industries), referral-based inspection, or random inspection?
3) Obtain a copy of the complaint (if applicable). Most inspections are the result of employee complaints. The compliance officer or inspector should provide you with a copy of the specific complaint(s). The employee’s name will not appear on the document. Employees who have registered safety complaints fall under the OSHA Act and are protected from discrimination or retaliation by their employer.
4) Designate an employee representative. OSHA inspectors are required to ask for the participation of an employee representative. If the plant is organized, the union safety chairman, shop steward, or other union official will be asked to participate. If the facility is not organized, the employer may choose to have an employee representative participate.
5) Limit the scope of the inspection. Define the areas that the Compliance Officer will need to see and confine the visit to those areas or departments. Under no circumstances should you offer a plant tour. OSHA inspectors can cite any violations they see in “plain view,” regardless of the initial purpose of the inspection. Escort the compliance officer to the targeted area(s) via a route where he or she is least likely to notice safety violations, even if that route involves walking outdoors.
6) Search warrants. Know that you have the right to refuse to allow an inspection without the presentation of a search warrant. Requesting a warrant will buy time before OSHA returns to conduct the inspection, but this will only delay the investigation and is not a long-term option to avoid the inspection altogether.
During the Walk Through:
7) Stay with the OSHA Compliance Officer. During the walk-around, you should stay with the OSHA Compliance Officer and accompany him or her at all times with as few personnel as possible.
8) Take photographs and videos. OSHA inspectors are instructed to take photographs or create videos to document safety violations. Most employers allow photographs unless there is a trade secret or security issue. Companies should have cameras available and should take photographs and videos of the same items as OSHA. These records will be helpful to reference in the event that a fine is imposed in the months following the investigation.
9) Do not volunteer information. Take notes on all observations an inspector makes, particularly departments or equipment inspected, approximate times spent in various areas, and the individuals who were interviewed. OSHA compliance officers are authorized to review relevant employer records during inspections. Relevant records include those required to be kept by the employer under the OSHA Act and OSHA standards or regulations. Provide only those records specifically requested.
10) Repair any small violations immediately. Fix a broken handrail, cap rebar, readjust grinding wheel work rest, etc. If you cannot personally handle as you walk with the inspector, direct someone else to handle it as you move on with the inspection. Immediately addressing identified hazards demonstrates good faith and may prevent a citation.
11) Provide records. Compliance Officers will want to review the previous 5 years’ OSHA logs and annual summaries of injuries. They will check to ensure the state and federal postings are in place and may also ask about safety programs for hazard communication, lockout/tagout, emergency evacuation, and bloodborne pathogens.
During the Closing Conference:
12) Promote the company’s commitment to safety. The closing conference provides the OSHA Compliance Officer the opportunity to review apparent violations and other pertinent issues, if any, found during the inspection, including input for establishing abatement dates. It also provides an opportunity for you to promote the company’s safety programs and commitment to safety and health. This is a factor OSHA considers in establishing penalty amounts.
Once the Closing Conference is over, OSHA has a maximum of six months to issue a citation (29 U.S.C. § 658(c)). In the meantime, make sure that you address any hazards that the OSHA investigator may have documented or discussed with you during the Closing Conference. It may be too late to avoid a fine on something that has been documented, but it’s not too late to avoid an employee incident.