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Employers should know what rights they have during an inspection
This is the first in a three-part series of articles about the Occupational Safety and Health Administration (OSHA). This installment addresses how employers should respond to OSHA compliance officers' requests. Read the second part here and the third part here.
A visit from an OSHA inspector can be stressful for employers—so here are some tips from workplace safety experts to help employers navigate through the process.
An employee complaint to OSHA about a safety issue can sometimes result in an inspection, said Patrick Miller, an attorney with Sherman & Howard in Denver.
OSHA may also elect to ask the employer to investigate the employee's complaint and provide a written response back to the agency, explained Carla Gunnin, an attorney with Jackson Lewis in Atlanta.
Other triggers for inspections can be referrals from other agencies, including law enforcement agencies. Or a company may be examined as part of an enforcement program that zeroes in on players in high-hazard industries.
An employer must notify OSHA about catastrophic events. Fatalities must be reported within eight hours and will trigger an inspection. An in-patient hospitalization, amputation or eye loss must be reported within 24 hours and may also prompt an inspection.
Employers should be courteous to OSHA inspectors and treat them like any other guest, said John Martin, an attorney with Ogletree Deakins in Washington, D.C. But they should also find out the specific reason for the inspection and should accompany the OSHA officer through the worksite.
Limit the inspection to the specific issue that prompted the site visit. If an OSHA officer is there specifically to look at electrical cords but tries to do a wall-to-wall inspection, employers can push back and try to limit the scope, Miller said.
[SHRM members-only how-to guide: How to Determine Regulatory Requirements for Safety]
Employers have the right to refuse to let OSHA enter the worksite, but it's fairly easy for an inspector to then get a warrant from a federal judge that grants access, Gunnin said.
"An employer can seek to quash these types of warrants; however, extreme caution should be used before ever going this route, and a legal counsel who is well versed in this type of process should be consulted."
In most circumstances, employers don't refuse entry, she said.
Employers have rights they can claim during the inspection process, such as asking the OSHA officer to wait for a member of management to arrive before entering the worksite.
Generally, OSHA inspectors will wait up to one or two hours but will want to just move forward with the inspection if it's going to take longer, Martin said.
It should be noted that for work that is done in plain view, such as a construction site, OSHA can document violations of the OSH Act without ever entering the property, Gunnin said.
Employers should carefully document everything the compliance officer is inspecting, Miller said.
Martin recommends that the employer representative bring a camera on the walkaround. If the OSHA officer is taking pictures, the employer should take pictures, too, he said. That way the employer can review everything with counsel after the inspection.
If employees use personal protective equipment—such as hardhats—on the worksite, make sure the inspector is also using that equipment, Martin said. "You don't want to create the impression that safety rules aren't enforced."
He added that anything workers say to OSHA officers can be used against the employer in an administrative proceeding. "Don't say, 'I'm sorry, I meant to fix that.' "
The compliance officer may also want to review certain documents—some of which must be provided to OSHA upon request, Miller said. OSHA 300 logs are most commonly requested, but officers may ask for a laundry list of other items, he added. "Take a look at those items carefully and push back if the request is too broad."
OSHA inspectors may also interview employees. While nonsupervisory employees can be interviewed in private, employers have the right to have a lawyer or another manager present when a supervisory employee is interviewed—and they should do so, Gunnin said.
Since managers are speaking on behalf of the company, if they admit to a violation, then by extension, the company is admitting to the violation. Legal counsel can help ensure that the compliance officer's questions are clear and that they are answered appropriately, Miller noted.
Cooperation goes a long way and establishing a good relationship with the compliance officer from the beginning is a best practice, Miller said.
Employers should designate someone to manage the inspection who can decide whether outside counsel is needed and can document everything that happens during the process, Gunnin suggested.
"If OSHA is expected to be on site for multiple days, the employer should ask that [the representative] provide a short briefing at the end of each day of what they are finding and any concerns that have arisen," she said. "It is better for the employer to know in current time what the potential issues are rather than waiting for the inspection to finalize."
This was the first in a three-part series of articles on OSHA. Tomorrow's installment will examine how OSHA priorities will change under the Trump administration. The third installment will examine different workplace safety standards for multistate employers.
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