Richard D. Alaniz is a senior partner at Alaniz Schraeder Linker Farris Mayes L.L.P., a national labor and employment firm based in Houston, Texas. He has been at the forefront of labor and employment law for over 30 years, including stints with the U.S. Department of Labor and the National Labor Relations Board. Alaniz is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Contact Alaniz at 281-833-2200 or firstname.lastname@example.org. Visit alaniz-schraeder.com.
Whether an Occupational Safety and Health Administration (OSHA) inspection of your workplace is triggered by a workplace injury, a formal complaint or a programmed, wall-to-wall inspection, being prepared for it will help limit exposure and defend against any citations that may be issued. A basic first step is to review and update the written safety plan for your facility. Such plans have long been mandated in some states, and are clearly a necessity in today’s workplace. In conjunction with updating the plan, it is important to develop a protocol for responding to a potential OSHA inspection. Make sure that your front office knows whom to contact when that compliance officer comes to the door.
If you do not have a safety director, designate a specific manager(s) to take the lead. Make sure that he/she knows exactly how you expect the inspection to proceed from the company’s perspective. Be sure to confirm that your Logs of Work-Related Injuries and Illnesses (OSHA Form 300) are up to date and posted as required. They will be reviewed as part of any inspection. Likewise, have safety committee minutes organized and readily available for review as well. If the inspection is in response to a recent workplace accident, you should also have the incident investigation notes and related material readily available.
1. Understanding Warrant or Warrantless Inspection
Since at least 1978, the United States Supreme Court has held that an employer may require OSHA or its state counterpart to obtain a warrant to conduct an inspection of an employer’s premises. Whether to insist upon a warrant is a significant decision that has, as one might expect, serious pros and cons. Among the more significant pros is the possibility of limiting the scope of the inspection and possible dismissal of citations unrelated to the specifics of the warrant. A frequently cited con is the potential that an irritated compliance officer, forced to seek a warrant, will strive even more to find violations. While such conduct is clearly contrary to OSHA’s inspection procedures, human nature may prevail. Unless unique circumstances are present, most employers do not insist upon a warrant and seek to be as cooperative as possible. Maintaining a cordial relationship with OSHA is always preferable. You and the compliance officer share the same goal: a safe workplace for your employees.
2. Controlling the Walkaround
After reviewing your OSHA 300 logs, the compliance officer will begin the tour of your facility. An employee representative is generally requested to participate. Compliance officers are permitted to ask questions of both employees and supervisors/managers as they inspect your facility. Your designated management representative should carefully note all comments and questions from the compliance officer during the course of the walkaround. You may have more than one management representative participating, if you so choose, and many employers do so. If any photographs and/or video are taken, your management representative should take the same photographs and/or video.
He/she should also exercise as much control as possible regarding the scope of the inspection without creating a confrontation. Unless it is a scheduled, wall-to-wall inspection, it should be an inspection of limited scope, focusing on the equipment or area that prompted the complaint or the accident that caused the visit. Permitting the compliance officer to have unrestricted access to inspect all areas and observe uninvolved equipment merely increases the potential for finding violations.
3. Conducting Interviews
As part of any OSHA inspection, the compliance officer has the right to, and generally will, interview both employees and management representatives. Employers have a right to be present or have their attorney present at any management interviews. There is no right to be present at employee interviews. However, employees are not obligated to participate in any interviews, and the employer can so inform them.
While OSHA could seek a subpoena to compel employee participation, they generally do not go to that next step unless a serious injury or death is involved. It is important that any manager or supervisor interviewed be truthful, but not volunteer information unrelated to the matter at hand. They should respond to questions as succinctly as possible. They should also request a copy of any statement that they are asked to acknowledge or sign. You should also ask any employees interviewed to request a copy of any statement they provide to the compliance officer.
4. Comprehending Medical Marijuana, Workplace Injuries, OSHA & Positive Drug Tests
A potential new concern is that in a routine OSHA inspection, your drug testing policy may become an issue. Last year, OSHA published a rule prohibiting employers from enforcing a policy that required employees to submit to drug testing after an accident because the policy may discourage employees from reporting injuries.
Currently, OSHA does not permit employers to have a policy requiring drug tests after every accident, unless the employer is required to drug test employees due to some other federal or state law, such as regulations for drivers from the Department of Transportation. However, in June 2017, the Department of Labor issued a notice of proposed rulemaking to revise, reconsider or remove portions of the rule. Therefore, the Trump administration may eventually revise OSHA’s current policies forbidding employers from conducting post-accident drug tests any time there is an accident.
In addition, employers should be aware that three states have found that an employer could not fire or discipline an employee for a positive drug test for marijuana when the employee uses medical marijuana and the state prohibits discrimination based on this medical marijuana use. This is a change that will affect many workplaces, regardless of industry. It is likely that, in time, more states will adopt this or similar policies. If there is a workplace accident in these states, or others as the policy becomes more widespread, then OSHA and state law may prohibit a blanket policy of drug testing after an accident or may prevent an employer from concluding that an employee was impaired during the accident, even if he/she had a positive drug test.
In July 2017, the Massachusetts Supreme Judicial Court found that companies have a duty to engage in an interactive process with employees to determine if there are “equally effective medical alternatives to the prescribed medication” (marijuana) for an employee’s handicap that would not violate the company’s drug policy. When an employee’s physician believes that medical marijuana is the most effective treatment for an employee’s medical condition, employers must allow employees to use marijuana when they are not on duty. The court found that there is an implied right to off-site medical marijuana use as a permissible accommodation for a handicapped employee.
A Federal District Court in Connecticut in August 2017 found that the Controlled Substances Act, the Americans with Disabilities Act (ADA) and the Food, Drug and Cosmetic Act do not preempt or nullify the state law on the use of medical marijuana. The Controlled Substances Act does not prohibit an employer from hiring an employee that uses marijuana when not on duty. The ADA does not prohibit employers from accommodating employees by permitting off-duty medical marijuana use. Finally, The Food, Drug and Cosmetic Act does regulate employment and the claim in the case was limited to Connecticut’s anti-discrimination law.
Finally, in May 2017, a Rhode Island Superior Court found that even though nothing in the medical marijuana law required an employer to accommodate medical marijuana at work, the court found that an employer violated the law when the plaintiff disclosed she used medical marijuana, would not stop using marijuana (off duty) while working for the company, and could not pass a drug test. The court concluded that the employer has no duty to accommodate the use of medical marijuana by restructuring jobs, modifying work schedules or other accommodation. However, the court ruled for the plaintiff because the employer discriminated against the employee for her disability by refusing to hire her because she used medical marijuana outside of work to treat a disability.
The law concerning off-duty marijuana use is rapidly changing across the country. If there is an OSHA investigation, then employers may be liable for accidents caused by employees that failed drug tests because they use medical marijuana off duty. Currently, drug tests for marijuana cannot gauge whether an employee was under the influence of marijuana at work because marijuana can stay in someone’s system for days or even weeks.
Employers that conduct drug tests after an accident should be aware that OSHA might determine that the drug testing is retaliatory if the employer has a blanket drug-testing policy and is not required to drug test by federal or other law.
5. Completing an Effective Closing Conference
At the end of the inspection process, a closing conference is routinely held. The compliance officer normally will reference any standards that he/she feels have been violated, as well as possible abatement measures that could or should be taken. The management team representative should take the opportunity to obtain as much detailed information as possible, including all possible violations that may result from the inspection as well as the specific OSHA standards involved.
If there are any unique problems with abatement, those should also be thoroughly discussed, including any efforts already taken to abate the condition and eliminate any employee exposure to a hazard.
OSHA inspections do not have to be the traumatizing experience generally envisioned by most employers. Proper planning and preparation, as well as reasonable efforts to control the scope of the inspection as it is occurring, will greatly increase the employer’s opportunity to limit or even avoid costly OSHA citations.