Be Prepared in Case OSHA Comes Knocking

By Allen Smith Jun 27, 2008
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CHICAGO—Each year the Occupational Safety and Health Administration (OSHA) conducts 35,000 to 40,000 inspections, Neil Wasser, the firm chairman of Constangy, Brooks & Smith in Atlanta, told attendees of his Annual Conference session, “OSHA Inspections in the Real World,” held here June 23. Then he asked: Is your worksite prepared if you’re next?

Wasser recommended that HR ensure that worksites have detailed written response plans in case OSHA comes knocking. Employees other than HR safety managers need to be familiar with it and to conduct periodic run-throughs, he added.

Assign Roles

A company’s written procedures for responding to OSHA inspections should specify who does what, Wasser emphasized.

At least two company employees should accompany the inspector, Wasser said. One should listen to everything the inspector says, and the other should take notes and fix as many little things as possible while the inspector still is on the premises, because quick fixes can reduce penalties significantly.

Technically, an OSHA inspector doesn’t have to be admitted into the plant unless a company employee consents, but that usually just ticks off the inspector, who then gets a warrant, he noted.

There is an opening conference where the inspector talks about what is going to be done during the inspection, which usually will be conducted for safety or health. Employers have the right to see the complaint and get a copy of it, so make sure employees know to ask for that. Employers also have the right to videotape the meeting, but OSHA won’t tell you that, Wasser said.

If it is a safety inspection, the employer should have a camera at the ready so that someone from the company can record everything that the OSHA inspector is videotaping, he recommended.

With health inspections, the OSHA employee often will monitor the air, so the company should be ready to have an employee to monitor the air during the inspection, he added.

Some inspections are wall-to-wall, while others are based on complaints and confined to specific locations on site. However, an OSHA inspector can cite an employer for any OSH Act violation identified on the way to the area of complaint, so choose the shortest route.

Don’t let your guard down too much on OSHA inspections, Wasser warned. The person who is doing on-the-spot repairs shouldn’t, for example, gab about information that wasn’t sought.

At the end of the on-site visit, there will be a closing conference and then OSHA has six months to issue a citation of the violation, which the employer may contest.

Repeat and Willful Violations

Because of the substantial increase in penalties for repeat violations, Wasser urged session attendees to learn where there have been OSHA citations for all of their facilities within the last three years. He said that information is readily available on the OSHA web site at www.osha.gov. HR should ensure that “the fixed places cited” stay fixed, he said, and that none of its other facilities have the same violation.

Fines also are high for willful violations, which most frequently happen when employees complain to supervisors about Occupational Safety and Health (OSH) Act violations and supervisors don’t respond, Wasser added. Supervisors need to be trained to welcome complaints, he emphasized.

Beware of casting the net too broadly to address safety problems through safety audits, he cautioned. Once employers know about safety violations they have to be prepared to fix them or risk being liable for willful violations.

“Audit one room first. Get that fixed,” Wasser said. “Don’t audit more than you’re prepared to fix.”

Allen Smith, J.D., is SHRM’s manager of workplace law content.

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