Construction Business Owner, January 2007

For the last few years, the Occupational Safety and Health Administration, the Mine Safety and Health Administration and other agencies have emphasized cooperation and consultation more than the vigorous enforcement associated with the early 1990s.

--          $21 million in OSHA fines following the Texas City BP explosion

--          The Sago Mine tragedy and the resulting Mine Improvement and New Energy Response Act of 2006 (MINER), or increased use of Pattern of Violation (POV) provisions and MSHA's March 31, 2006, Directive for Evaluating Flagrant Violations, which includes maximum penalties of $220,000

--          Continued pressure for enhanced criminal actions, such as the combined OSHA/Environmental Protection Agency (EPA) efforts

--          OSHA's whistleblower/criminal investigators now spend as much time on Sarbanes Oxley claims as OSHA claims and increasingly focus on "conspiracies," "wire fraud" and other white collar criminal concerns

--          Increased training of OSHA compliance officers (CSHO's) to anticipate employer defenses, such as "Unpreventable Employee Misconduct"

--          An emboldened Chemical Safety Board (CSB) who will often clash even with OSHA in the investigation of "explosion" fatalities

In the face of increased exposure, contractors should plan how to handle more aggressive inspections now. Regardless of whether OSHA, MSHA, the EPA or local law enforcement agencies inspect an employer, certain basic rules apply. The overreaching principle is that the employer should maintain "control" of the investigation. Control involves using finesse and a constant adjustment to the demands of the different agencies investigating a job.

The second principle is to think "broadly" about each inspection-don't pigeon-hole the inspection as only an OSHA inspection. Recognize, for example, that an employee death on the job may spawn an OSHA inspection, scrutiny by local law enforcement, a wrongful death action and claims of delay and liquidated damages by a general contractor or owner. In addition, owners and general contractors in many industries, including utilities and manufacturing, increasingly scrutinize a bidding contractor's OSHA workers' compensation experience. The modest OSHA penalty may be the least expensive aspect of a contractor's problems arising from a citation.

Next, whether the contractor is a general, sub, construction manager, or owner, he should have a plan in place to ensure that all contractors are immediately made aware of any inspector's entry. Each contractor should carefully review not only the company's safety program, but its full contract with other parties onsite, including indemnification provisions, to understand who OSHA will ascribe safety responsibilities. Be familiar with OSHA's multi-employer citation guidance as interpreted by the Occupational Safety and Health Review Commission (OSHRC) and the courts, and plan accordingly.

Maintaining the control continues from entry through interviews and document production. Determine which contractor representative can best respond to OSHA, while controlling the pace and direction of any inspection. The safety manager should be available, but a well-coached project manager may be the better choice. The project manager, not the CSHO, obtains information from the safety manager and has the opportunity to determine how to best provide it.

Once the OSHA or MSHA compliance officer arrives, the contractor should determine the reason for the investigation and limit the "scope" of the inspection to that purpose. Most OSHA CSHOs will explain the individual complaints they are investigating, confirm that the investigation is in response to a fatality or as a result of a programmed inspection process.

Once the CSHO has stated the purpose of his investigation, the employer should state that he is admitting the CSHO only for the purpose of investigating those delineated complaints. Likewise, the employer should inform the CSHO that his photography should limit itself to the specific areas of complaint, and not consist of broad sweeps of the entire work area. If the CSHO asks to broaden the investigation, the employer may choose to agree or disagree; however, as in all aspects of the inspection, the employer should retain the "control" of this process.

The OSHA CSHO will ask to see documents, and illness and injury reports should be immediately provided. As the investigation goes on, the employer may choose to maintain a running list of requested materials and provide them at the end of the day or on the following day. This process permits the employer to better control the information flow and to review materials before providing them. The OSHA CSHO will generally ask to take still or video photographs, and most employers agree.