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Certain questions are asked frequently by clients when the U.S. Occupational Safety and Health Administration (OSHA) shows up unexpectedly at their doorsteps. These questions and many more are addressed in Epstein Becker Green’s OSHA Inspection Checklist desk reference guide, found on its OSHA Law Update blog.
Scenario 1: An OSHA Compliance Safety and Health Officer (CSHO) arrives unannounced to begin an inspection, but the representative who the employer wants to manage the inspection is not present. Can the employer request that the CSHO return later or wait to start the inspection until the chosen representative is available?
Answer: Yes, the employer can request that the CSHO return at a later time or wait a reasonable amount of time until the employer’s chosen inspection representative is available. The Occupational Safety and Health (OSH) Act grants to employers the right to be represented during an OSHA inspection and to accompany an OSHA CSHO during on-site inspection activities. The employer has the right to designate whoever it wants to fill that role. If that person is not available at the moment OSHA arrives but can be available in a reasonable amount of time, the employer can request that the CSHO wait or return later.
OSHA’s Field Operations Manual explains that OSHA believes that waiting approximately one hour is a reasonable amount of time to delay the start of an inspection to wait for the employer’s selected representative to become available:
When neither the person in charge nor a management official is present, contact may be made with the employer to request the presence of the owner, operator or management official. The inspection shall not be delayed unreasonably to await the arrival of the employer representative. This delay should normally not exceed one hour.
Notwithstanding OSHA’s purported one-hour rule, unless the CSHO has a warrant or other exigent circumstances exist (i.e., imminent danger in plain view), the employer can refuse to consent to the inspection until its chosen representative arrives, so OSHA could not proceed with the inspection without obtaining a warrant, which generally takes at least a couple of days.
Scenario 2: The OSHA CSHO explains at the Opening Conference that the inspection is in response to an employee complaint about a machine guarding hazard in the maintenance shop, but he or she requests that the employer’s representative grant him or her a general tour of the entire workplace. Should the employer’s representative provide the CSHO with a general tour of the entire workplace?
Answer: No, in the absence of a related special emphasis program, a warrant or a hazard in plain view, OSHA cannot expand the scope of a complaint-based inspection beyond the location and hazard identified in the complaint without the employer’s consent. The employer should insist that the inspection be limited to that location.
To minimize the risk of the CSHO expanding the scope of the inspection based on his or her observing hazards in plain view in other locations, the employer’s representative should follow a route to the complaint location that introduces the CSHO to the least sensitive areas of the facility, even if that means walking the CSHO around the outside of the building to a different entrance closer to the location of the complaint.
Scenario 3: The CSHO asks to conduct an interview of a nonmanagement employee, but the employee explains to his or her supervisor that he or she does not feel comfortable speaking to OSHA and does not want to be interviewed. How should the employer representative respond to the employee?
Answer: The employer representative can advise the employee that it is the employee’s choice whether or not to agree to the CSHO’s request for an interview but that OSHA has subpoena authority and may compel the employee to participate in an interview if he refuses a voluntary interview. Employees’ participation in OSHA inspections is protected from employer retaliation by Section 11(c) of the OSH Act, so the employer representative may not discourage the employee from participating in the interview or from sharing any information during the interview and may not take any adverse employment action on account of the employee’s decision whether to participate in the OSHA interview.
Scenario 4: At the conclusion of a management representative interview, the CSHO asks the management witness to review the CSHO’s interview notes and sign the notes if they appear to be accurate or to write out and sign a witness statement. Does the management representative witness have to do so, and/or should he or she agree to sign the notes or write out a witness statement? What about being taped or video recorded during the interview?
Answer: OSHA has no authority to require a witness to sign a document or to prepare a written witness statement or any form of new written document during an inspection. Likewise, during a “voluntary” interview, witnesses may refuse to allow an interview to be video- or tape-recorded. Note that OSHA can issue a subpoena that compels a witness to submit to an audio- or video-recorded interview. OSHA cannot, however, compel an employee to write or sign a document, even with a subpoena.
Scenario 5: During an inspection, OSHA issues a subpoena to your workers’ compensation insurer seeking risk assessments, loss control surveys and other safety audits conducted of your facility. Is the insurance company required to provide such materials?
Answer: Yes. In May 2011, OSHA won a key battle against an insurance company and all employers in a case involving two teenagers who became engulfed in corn. As part of OSHA’s investigation, it subpoenaed records from the employer’s workers’ compensation insurer, Grinnell Mutual Reinsurance Co., seeking documents and testimony regarding working conditions observed by the insurer. Grinnell refused to produce documents or information, and OSHA sued the insurer in federal court. The insurer argued that enforcing the subpoena would cause a “chilling effect” by discouraging businesses from allowing insurers to conduct safety inspections if the material could be used against them in litigation or OSHA enforcement proceedings. The court disagreed, finding that with “OSHA’s authority to investigate, comes the authority to require production of evidence and to obtain court enforcement of subpoenas seeking such evidence.” See the district court’s opinion in Solis v. Grinnell Mutual Reinsurance Co.
OSHA has made it a habit of requesting from employers and third parties copies of safety audit reports from third parties (e.g., insurance companies, consultants, etc.) during workplace inspections and then using the audit reports to the detriment of employers. OSHA uses the findings from such safety audits as a roadmap to steer their inspections and references uncorrected audit findings as evidence:
After the Grinnell case, we know that OSHA has authority to access such audit records unless the audit was conducted under the protection of the attorney-client privilege. In order to invoke the attorney-client privilege properly, employers should seek the legal opinion of counsel with regard to OSHA compliance issues and have counsel conduct the audit personally or direct a third-party consultant to provide expert, technical assistance to the attorney. The consultant should obtain information about the employers’ programs and procedures and physical conditions at the plant from the employer directly, rather than gathering that information independently (i.e., any physical inspection or observations should be made in conjunction with a company representative who points out and explains operations and equipment to the third-party auditor). The audit report should be delivered to counsel, who then must use the report to deliver legal advice based on the technical information provided by the consultant (i.e., a memorandum to the employer describing legal compliance issues and attaching the report).
Editor’s Note: This article should not be construed as legal advice.
The author is an attorney and member of the Epstein Becker Green law firm, based in Washington, D.C. He is the head of the firm's national Occupational Safety and Health Administration (OSHA) Practice Group. He contributes to the firm’s blog, the OSHA Law Update.
Republished with permission. © 2012 Eric J. Conn, Epstein Becker Green. All rights reserved.
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