Does your heart race at the thought of a visit from OSHA? Even the most trustworthy manufacturer, construction job, or business can have a visit from OSHA inspectors. These visits can be nerve-racking. For those who have not experienced one, they can be wrought with questions and concerns.
Ease your anxiety by becoming familiar with these basic components to an on-site OSHA inspection and your rights as an employer.
Presentation of Credentials
Upon arrival, the OSHA inspector will provide their credentials and identification. Credentials have the Department of Labor shield on the front; the inside has an identification card and photograph. Inspections may be conducted by an industrial hygienist/health officer, a compliance officer or both.
- If you have questions about the authenticity of credentials, you can call the local OSHA office to verify their identity.
- As an employer, you have the right while on a job site to be free from unreasonable search and seizures. OSHA may not search a job site without administrative probable cause or permission to enter the site is given by the employer.
- Though it is not always advisable to demand an inspection warrant, you should negotiate to limit the scope of the inspection if there is no administrative probable cause.
The opening conference is when the compliance officer explains the purpose of the inspection, the scope, walkaround procedures, employee representation and employee interviews.
This is an important step in the process. Now is when you have time to negotiate the scope of the inspection. You also have the right to:
- Select a representative to accompany the inspector throughout the inspection. This includes a member of management escorting the inspector.
- Negotiate the scope of the walkaround inspection.
- You can establish an agreement on how the inspection will proceed.
- Requests for documents should be requested with written requests only.
- State that interviews should be scheduled in advance.
- If OSHA has initiated an inspection after a complaint from an employee or former employee, a copy of the complaint should be provided before any consent is given to an inspection.
- Should both an industrial hygienist and compliance officer be present, determine if they are to stay together with one employee to shadow or have separate employees shadow each.
The OSHA compliance officer will walk areas agreed to during the opening conference. The officer will look for hazards that could lead to employees being injured or ill. They will also review worksite injury logs/records and the posting of the OSHA poster.
Hazards may be discussed and pointed out. By law, the office is required to issue citations for any hazards he or she observes.
- Employers have a right to contest all citations.
- If OSHA interviews a member of management, you as the employer and legal counsel have a right to be in the room. Any statements made by supervisors or management are on behalf of the company.
- Any hazards noted, mentioned or cited should be photographed and corrected as quickly if possible. Quickly correcting noted hazards is a good way to demonstrate compliance.
- Employers have the right to trade secrets. If your business has confidential information, the OSHA officer should be made aware so that it is not provided during Freedom of Information Requests.
- Inspections should be reasonable in timing, scope and manner.
Once the walkaround has been completed, the closing conference will be conducted to discuss findings. The next steps, such as an informal conference, contesting citations, and proposed penalties, will be presented to the employer.
If an industrial hygienist was present for inspection, citations may not be included until the results of the samples are received. The compliance officer may determine to expand the inspection and decide to bring an industrial hygienist/health officer at a later date if potential health exposures are present that need examined.
- You may challenge citations but must issue a Notice of Intent to Contest within 15 working days.
- If requested, informal conferences with OSHA must be held within the 15-working-day Notice of Intent to Contest period. This does not extend or replace the filing of written notice if you desire to contest.
In a worst-case scenario, you could end up in court. If this occurs, you have the following rights:
- You may request to extend the abatement date.
- You have the right to counsel during the hearing.
- You have the right to appeal to Federal Circuit Court.
Having an inspection can cause concern and create anxiety, no matter how prepared you are. If you have an inspection or need guidance, please reach out to the Miller Group so we can provide further assistance.