Although advocates for greater federal enforcement often cite that the Occupational Safety and Health Administration (OSHA) would need 129 years to inspect all of the workplaces it regulates, the likelihood of an inspection by OSHA or another agency is a great deal higher for many employers. Employers in industries such as construction may expect visits from enforcement agencies regularly. With federal agencies “leveraging” limited enforcement resources by hitting offenders with attention-getting sanctions, employers will ignore the possibility at their peril. They must be prepared.
Preparing for an OSHA or other agency inspection simply makes sense. With planning, employers can manage these government agency inspections effectively to minimize work disruptions, present the employer and its work site in the best light possible, maintain positive employee relations and preserve sound relationships with government officials.
Failing to plan appropriately, on the other hand, may result in civil penalties, significant abatement costs, criminal prosecutions, negative media coverage and deteriorating employee relations. Taking appropriate steps before, during and after a government inspection or investigation can go a long way in managing its scope and limiting liability.
Before OSHA Arrives
Well before a government investigation begins, employers should establish a team of management representatives who will interact with government agency representatives. Identifying these company representatives in advance and preparing them to manage an investigation will help control the flow of information to agency officials and minimize disruptions to work and business.
One member of this team (along with an alternate) should be designated as the employer representative who will accompany an OSHA compliance officer during a walk-around inspection and deal directly with other government officials. The employer should choose an individual who understands relevant employer policies, as well as the operations or practices the agency is inspecting or investigating. With respect to an OSHA inspection, in addition to understanding the technical aspects of equipment and the application of safety policies, potential walk-around team members must be aware of the employer’s rights during an OSHA inspection, the potential for OSHA liability and OSHA’s reason for conducting an inspection.
Team members (as well as company receptionists and security personnel) should be instructed to always request credentials and verify that an individual(s) presenting as a government inspector is, in fact, a federal or state official. Those greeting the inspector should immediately notify a designated team member when the inspector arrives.
Many employers ask whether or not making federal or state officials wait to begin an inspection until the appropriate team member or management official arrives is acceptable. As a general rule, the employer has the right to grant or deny entry to the workplace, and most compliance officers will wait a reasonable amount of time, up to 45 minutes to an hour. A wait time longer than an hour, however, may be treated as a denial of entry, and the investigator may threaten to obtain a warrant.
At this point, the employer must decide whether to begin the investigation without the designated team member or other company official. Denying OSHA entry, or even testing an inspector’s patience by making him or her wait, is unwise. If one team member is not available, others should be ready to take the lead.
During an OSHA Investigation
OSHA inspections rank among the most intrusive of federal enforcement activities concerning employment-related laws, so employers should be especially prepared for these types of investigations. Below are steps for handling an OSHA investigation. (This process may be adapted to other agency investigations.)
Once the company’s designated team member arrives, the compliance officer will hold an opening conference to explain the purpose of the investigation. During this time, the company official should set ground rules. These include rules such as what personal protective equipment the company will require the compliance officer to wear, any site-specific hazard training necessary to enter certain parts of the workplace, the existence of any government security-restricted areas and whether there are trade secrets that must be protected.
Participating in the Walk-Around Inspection
After the opening conference, the compliance officer will likely want to conduct a “walk-around” inspection. Depending on the scope of the inquiry, this could either encompass a “wall-to-wall” inspection of the workplace or be limited to a certain area or piece of equipment.
Employer team members can take several measures to ensure they continue to maintain control of the investigation:
- Accompany the compliance officer at all times during the investigation.
- Limit a compliance officer’s conversation with employees at their work stations to five minutes or less. If the compliance officer wishes to speak with employees, the appropriate team member will arrange for interviews. This allows the employer to manage job assignments and schedules, so work processes are not disrupted during longer, serial interviews.
- Note the areas in which the compliance officer shows particular interest or any questions asked during the walk-around. Take notes about the compliance officer’s comments and observations. If he or she takes photographs, take identical pictures for your investigation file. In essence, the designated team member who accompanies a compliance officer during a walk-around should “shadow” the compliance officer.
- Avoid “staged” operations or demonstrations for OSHA compliance officers. For example, if a piece of equipment is not operating, employees should not mimic operations or illustrate where they place their hands during operations. OSHA is entitled to observe work as it is being performed, but OSHA cannot insist that a company demonstrate how equipment operates or how particular operations are performed.
- Require advance notice of industrial hygiene sampling, so the employer can ensure that it has competent personnel on site, such as an industrial hygienist, to perform side-by-side air or other monitoring.
- Insist on having the employer take photos and provide copies to OSHA when OSHA wishes to take photographs of trade secret or business confidential processes or equipment.
Many government inspectors, including OSHA compliance officers, interview employees to collect evidence of alleged violations. OSHA has the right to privately question any employee. However, interviews of employees are voluntary, and employees may choose whether or not they want to participate in an interview, unless OSHA issues a subpoena. Additionally, employees may choose to have a representative accompany them during the interview, such as a union or management representative; however, the presence of a representative must be the employee’s choice.
Compliance officers also may seek to interview management personnel. Employers have a right to have a representative present during any interview of a management or supervisory employee, and they should exercise that right. Statements made by management employees may be binding on the employer, so having another witness present to verify or confirm management employees’ statements may be critical.
Request for Documents
Compliance officers often will request copies of certain documents, such as written safety or health plans, training documents or safety data sheets. Employers should insist that OSHA submit all document requests in writing to a designated team member or management representative, so the employer can keep a record of the documents OSHA requests and the employer produces.
If employers prepare for government inspections well in advance and establish protocols for handling these inspections, they may be able to exert significant control over the inspection and reduce exposure to OSHA and other liability.