Employer Guide to OSHA Inspections
Introduction
Every employer should strive to maintain a good OSHA record. Not only are
customers, insurers, and others increasingly scrutinizing employers’ OSHA
records as a condition of doing business, but OSHA penalties and citations
can be substantial – as much as $70,000 for a single willful or repeat
violation. Citations and penalties not only impact a company’s bottom line,
but also its ability to do business.
An OSHA inspection is not a friendly visit – OSHA’s purpose is to gather
evidence so that citations and penalties can be issued and later affirmed.
Sherman & Howard’s Employer Guide to OSHA Inspections is designed to
help employers be prepared and to understand and exercise their rights –
prior to, during, and after OSHA inspections – with the goal of minimizing
OSHA liability.
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About the Authors
Rodney Smith, Pat Miller, Chuck Newcom and Matt Morrison practice
occupational safety and health law, representing employers exclusively. They
each routinely represent clients before the federal Occupational Safety and
Health Review Commission, the federal Mine Safety and Health Review
Commission, and state occupational safety and health boards.
About this Guide
This Guide is published by Sherman & Howard to provide information of
general interest. It does not provide legal advice for any specific situation or
create an attorney-client relationship between any reader and the firm. If you
want legal advice on a specific situation, you should speak with one of our
lawyers and reach an express agreement for legal representation.
Before OSHA Arrives
• Select a Company Representative.
Most on-site inspections begin with an unannounced visit by an OSHA
compliance officer. When OSHA arrives at your door, it may be too late to
decide who handles the inspection and what to do. Before OSHA arrives, your
company should develop an inspection policy or procedure that includes
designating a representative to supervise and handle all aspects of an OSHA
inspection. By establishing policies and procedures in advance, and selecting a
representative (and potential back-up representatives) in advance, you can ease
the disruption of an OSHA inspection and minimize your company’s legal
liability.
Who should your representative be? Ideally, your representative should be
your company’s Safety Director or someone in upper management who is well-versed in a) OSHA standards applicable to the facility, b) the health and safety
conditions of the workplace under inspection, c) your company’s health and
safety program, and d) the location of records that OSHA requires employers to
keep (such as OSHA 300 logs). Additionally, a well-versed representative may
want to be familiar with OSHA’s own internal procedures for handling an OSHA
inspection, as described in OSHA’s Field Operations Manual (or FOM) and
available at http://osha.gov/OshDoc/Directive_pdf/CPL_02-00-150.pdf.
What if your representative is not available • Because OSHA visits are typically
unannounced, your company should identify potential back-up representatives
as well. When OSHA arrives, you may ask the OSHA inspector to wait for the
arrival of your designated representative before starting the inspection. In most
cases, OSHA inspectors are willing to wait a reasonable time, up to one hour,
before proceeding.
What if OSHA refuses to wait? Where the inspector refuses to wait, or where it
is impossible for the representative to personally appear, designate a back-up
representative to fill in. Your designated representative can then supervise and
monitor the inspection by telephone, giving instructions to the back-up until he
or she arrives on site.
Before OSHA Arrives
• Establish Your Company Representative’s Responsibilities.
Your designated representative should accompany and supervise all aspects
of OSHA’s inspection. The representative’s responsibilities should include:
• Attending the opening and closing conferences.
• Accompanying the OSHA inspector and recording all aspects of the walk-around inspection, including: areas of the workplace inspected, names of all
employees and supervisors interviewed and identification of any
photographs, measurements and samples taken. The representative’s notes
of the inspection should remain confidential. (For an example of the notes
that should be taken during an OSHA inspection, see the “Sample OSHA
Inspection Notes” at the end of this Guide.)
• Photographing all areas of the facility inspected, making certain to take
“side-by-side” photographs of all areas photographed or videotaped by
OSHA.
• Responding to all document and other information requests by the OSHA
inspector.
• Making sure that employees are aware of their rights during an OSHA
interview.
• Attending and assisting in all interviews of management employees.
• Keeping the inspection under control. The Occupational Safety & Health Act
provides that the inspection shall take place at “reasonable times and within
reasonable limits.” Within the exercise of good judgment, your
representative should not allow the inspection to unreasonably interfere
with work in progress or run beyond normal working hours. “Partial”
inspections should not be allowed to expand, unnecessarily, into “wall-to-wall” inspections covering an entire facility or worksite.
• Never admitting violations or unsafe practices, but correcting observed
violations as soon as possible.
• Consulting with your company’s legal counsel about difficult or special
problems, such as search warrants or subpoenas. As necessary, allow
counsel to deal directly with the OSHA inspector.
• Being courteous and polite, but firmly exercising your company’s legal rights.
Before OSHA Arrives
• Catastrophic Accidents, Fatalities, and Other Significant Investigations
Special care must be taken in the case of catastrophic accidents, fatalities or
other significant inspections, such as those involving lengthy “wall-to-wall”
inspections or those conducted as part of OSHA’s National Emphasis
Programs. Because of the potential liability and the added complexity of the
legal issues involved these cases, you should contact legal counsel
immediately and, if at all possible, before OSHA is allowed to start its
inspection or any information is provided. Your company’s legal counsel, or
your designated representative acting with the advice of counsel, should then
closely supervise and monitor all aspects of the inspection.
OSHA inspections under these circumstances may last several weeks or
months, require several inspectors, involve the issuance of search warrants
and/or subpoenas for the production of records and testimony, and present a
number of issues usually not present in a routine inspection. In many
instances, OSHA citations resulting from fatality or catastrophe inspections
can carry very significant penalties – some in excess of $1 million. A willful
violation of an OSHA standard resulting in death can also carry criminal
penalties.
After OSHA Arrives
• The Opening Conference
Most OSHA inspections begin with an opening conference. The purpose of an
opening conference is to discuss what will happen during the inspection. This is
your opportunity to start managing the inspection. Here are some
recommendations:
• Ask to see the inspector’s official credentials if he or she does not offer them.
• Identify the company representative that you have designated to supervise
the inspection, and inform the inspector that all inspection activities should be
coordinated through your designated representative, no one else.
• Don’t be afraid to ask questions, including why your facility or worksite was
chosen for inspection (employee complaint, referral by another agency, etc.).
• Ask to see a copy of the written complaint if there is one.
• Confirm with the inspector what he or she wants to see and do, and how long
he or she expects to be at your workplace. Be courteous, but keep the
inspection moving toward completion.
• Reach an understanding with the OSHA inspector that the inspection will be
limited to the areas or conditions listed in the complaint or referral. For
example, if an employee files a complaint about defective forklifts in the
warehouse, then the inspection should be limited to forklifts in the
warehouse, not other areas. The OSHA inspector will usually investigate other
observed violations in “plain view” during the investigation, but your company
representative should not be afraid to object if the inspector wants to expand
a limited investigation into a lengthy “wall-to-wall” inspection, without
justification.
• Discuss any safety issues that may be encountered during the inspection,
including personal protective equipment required by your company. Require
the inspector to abide by all company safety rules.
• Identify areas in the workplace or documents that might reveal confidential
trade secrets and get the inspector’s confirmation that photographs of
confidential areas or documents will be noted as “trade secret” in OSHA’s file.
Send a confirming letter or email if necessary.
• Take good notes of all matters discussed at the Opening Conference.
After OSHA Arrives
• Handling Record Requests: Required vs. Non-Required Documents
During the Opening Conference, or some time during the inspection, the
inspector will ask to see certain records and documents. As a general rule, you
should not volunteer documents not specifically requested. If your company is
served with a subpoena for the production of records or witness testimony,
you should consult your company’s legal counsel.
In responding to document requests, you should distinguish between those
records that are required to be maintained and produced under OSHA’s
standards and those that are not. Examples of required documents include
official injury and illness logs (OSHA 300, 301 and 300A) or your company’s
Hazard Communication Program. Your company representative should be
familiar with required records and be ready to produce them as requested.
Failure to produce the required records in a timely manner may result in
citations and penalties.
Production of records not required to be kept by OSHA’s standards is another
matter. By complying with such requests, you run the risk of providing
damaging evidence against your company or helping the inspector find and
document violations or expand the investigation. As to these documents, the
better practice is to defer all requests until the documents have been
reviewed with upper management and/or your company’s legal counsel. Your
company may find that it can object to producing these documents on the
grounds that OSHA’s request is overly burdensome (i.e., it takes too much
time and effort to comply), irrelevant to the investigation, or legally protected
from disclosure.
Generally speaking, you should take the following steps when responding to
document requests:
• To avoid later misunderstandings, have the inspector put all document
requests in writing or an email.
• Obtain a clear understanding of when and where the inspector wants the
documents to be produced.
• Before producing any records, make sure that they are complete and
accurate. For example, are the company’s OSHA 300 forms completely
filled out? Are they accurate •
• Keep a copy or a list of all documents provided.
After OSHA Arrives
• Overseeing the Walk-Around Inspection
OSHA’s actual inspection of your workplace – known as the “walk-around” – is one
of the most critical phases of its investigation. The efforts of the OSHA inspector
during the walk-around inspection will produce much of OSHA’s evidence as to
whether a violation exists. Here are points to remember:
• Accompany the Inspector: The law provides that your representative shall be
given an opportunity to accompany the inspector. You should always exercise
this right. If your designated representative is not immediately available when
the OSHA inspector arrives, request that the inspector wait until your
representative can arrive to begin the inspection.
• Employee Representative May Accompany Inspection: The law also provides
that a representative authorized by the employees, usually a union steward,
shall have the right to accompany the inspection. Generally, you have no say in
the selection of the employee representative.
• Photographs, Videotapes, Measurements and Environmental Samplings:
Typically the inspector will photograph or videotape the workplace, take critical
measurements and conduct environmental samplings, such as air samples or
noise measurements, depending on the type of inspection involved. Unless
trade secrets are involved, you generally have no right to object.
• Video or Audio Taping Employees: Caution should be exercised when the
inspector attempts to videotape or audio tape statements by your employer
representatives. They have the option of telling the inspector that they do not
wish to have their comments recorded.
• Take Your Own Photographs and Measurements: Your employer
representative should take his or her own photographs and measurements
either during or immediately after the OSHA inspection. Your representative
should also take good notes of what the inspector does during the inspection.
• Consider Using Your Own Experts: Complex health inspections involving, for
example, air contaminants or noise, pose special issues. Your employer
representative may not have the expertise to effectively monitor or replicate
OSHA’s scientific monitoring. In such cases, you should consider designating
your own expert, such as an industrial hygienist, to accompany and monitor
those portions of the inspection and, if appropriate, do side-by-side testing and
observation.
• Correct Unsafe Conditions As Soon As Possible: In many cases, unsafe
conditions are observed during the walk-around inspection. If possible, you
should always correct unsafe conditions observed during the inspection as soon
as possible or after the inspector departs. In the event a citation is issued, this
corrective action will demonstrate your good faith and may result in a lower
penalty. On the other hand, failure to correct an unsafe condition pointed out
by the inspector could result in higher penalties or a willful violation.
After OSHA Arrives
• Preparing for Employee Interviews
OSHA interviews are also one of the most critical aspects of the inspection. An
alarming number of citations are based on statements of employees or
supervisors. Advance preparation for these interviews can lessen your
company’s liability. Be aware, however, that the guidelines for non-supervisor
and supervisor interviews are different.
• Guidelines for Non-Supervisor Interviews
The OSHA Act gives employees the right to speak privately with OSHA. For that
reason, employer representatives are generally not entitled to be present for
non-supervisory interviews. “Non-supervisory” employees are typically defined as
those without the authority to hire, fire, discipline or direct the work. You should
be guided by your company’s own determination of which employees are
considered supervisory. In some cases, lead employees or foremen are
considered supervisory employees, as are safety directors, salaried managers and
professionals. You should seek advice from your company’s legal counsel if you
are in doubt.
Even though your employer representatives may not be permitted to be present
during non-supervisory interviews, you can take the following steps to prepare
employees:
• Inform employees that they have the right to speak or not speak to OSHA.
• Inform employees that they may request a representative, including a
supervisor, a union representative, or an interpreter, to sit in on the
interview. Understand, however, that OSHA may resist the presence of any
management representative during the interview.
• Put employees at ease and give them a “heads-up” as to what the OSHA
inspector is likely to ask. For example, employees are almost always quizzed
on their safety training and the facts surrounding any alleged violations or an
accident.
• Always advise employees to tell the truth.
• Intercede on behalf of employees who may be distraught or physically unable
to speak with OSHA, particularly after a fatality or catastrophic
accident. Employees and supervisors should not be interviewed until they feel
they are physically and emotionally able to do so.
• Inform employees of their right to request that they not be tape-recorded and
that they have the right to bring their own tape recorder.
• Conduct a voluntary debriefing of all employees interviewed by OSHA.
After OSHA Arrives
• Guidelines for Non-Supervisor Interviews (continued)
When informing employees of their rights or debriefing them, you must avoid
any pressure, coercion or retaliation. The OSH Act prohibits retaliation or
discrimination against an employee participating in an OSHA inspection,
including OSHA interviews. You should always tell employees that it is their free
choice as to how they wish to conduct their OSHA interview – you are simply
advising them of their rights.
• Guidelines for Supervisor Interviews
Unlike non-supervisory employees, the statements and admissions of a
supervisor may legally bind the company. In responding to management
interviews, the following guidelines should be observed:
• Your company representative has the right to be present for supervisor or
management interviews and should always exercise that right. In a fatality,
catastrophe, or other inspection involving significant potential liability, it is
often advisable to have legal counsel prepare supervisors or mangers for
interviews and have legal counsel attend all supervisor or management
interviews. Besides providing moral support, your representative or your
legal counsel can assist the supervisor in making sure that questions are
clearly asked and correctly answered.
• Management witnesses should be prepared in advance as to possible
subject areas during their interview, and the “dos and don’ts” for giving
testimony, including just answering the questions, avoiding speculation,
and the importance of telling the truth.
• During the interview, or anytime during the inspection, avoid admitting
violations or hazardous conditions.
• Supervisors also have the right not to be tape-recorded, or to bring their
own tape recorder.
After OSHA Arrives
• The Closing Conference
At the conclusion of the inspection, the inspector will hold a closing
conference to discuss observed violations. The closing conference may occur
immediately following the walk-around inspection, or several days or weeks
later. Here is some final advice:
• Don’t be afraid to ask questions: What specific standards are being cited?
Why? What is the classification (serious, repeat, etc.)? How much is the
penalty •
• Attempts to argue or settle the citations with the inspector at the closing
conference are usually unsuccessful. Instead, the inspector will encourage
you to attend an informal settlement conference after receipt of the
citations.
• Even if you agree with the proposed citations, avoid admitting violations or
recognizing hazards. There may be defenses to the citations that you have
not considered.
• Tell the inspector where to send the citations.
• Take good notes.
After OSHA Leaves
• Correct Violations or Other Safety Hazards.
If not already corrected during the walk-around inspection, you should begin
to address and correct violations or other safety hazards observed during the
inspection. Failure to correct an unsafe condition pointed out by the inspector
could result in a willful violation and significantly higher penalties.
• Receiving the Citations
Typically, citations are mailed to the employer within several days to several
weeks after the closing conference. All citations must be issued within six
months of the start of the inspection.
Upon receipt of the citations, you must post a copy at the workplace that was
inspected. If the work has been completed at the site of the inspection, for
example, at a construction site, then the citations should be posted at your
company’s main office. The citations must be posted until the violations are
abated, or for three working days, whichever is longer. Failure to observe
these posting requirements may result in additional citations.
• Informal Settlement Procedures
You have 15 working days from the receipt of a citation to contest the
citations. Prior to that time, you may request an informal settlement
conference with the OSHA Area Office to negotiate a settlement. In most
cases, a reduction of the assessed penalty or a modification of the abatement
date can be obtained. It is also possible to have the citation withdrawn or re-categorized to a lesser classification, i.e., from “Serious” to “Other.”
Settlements can also be reached after the citations are contested.
• Appeal Procedures
Formal appeals are initiated by filing a “Notice of Contest” with the OSHA Area
Director within 15 working days of receipt of the citations. You may contest
the violation, the proposed penalties, the abatement deadline, or all three.
The best practice is to contest all three. Citations not timely contested may
not be appealed, and no extensions of time are available. To avoid default,
you should watch for the citations in the mail following the closing conference
and then make certain that the 15-working-day contest deadline is strictly
observed.
After OSHA Leaves
• Appeal Procedures (continued)
The filing of a Notice of Contest stops the abatement requirements. The
abatement period does not begin to run again until the case is settled or the
Review Commission or the Court issues a final order affirming the violation.
Once a Notice of Contest has been filed with the Area Director, OSHA
transfers the case to its attorneys in the Solicitor’s Office of the U.S.
Department of Labor. The case is also sent to the federal Occupational Safety
& Health Review Commission, a separate federal agency charged with
adjudicating contested citations. The Review Commission assigns the case to
an administrative law judge. Such judges are located throughout the country.
Procedures before administrative law judges are similar to those in many
courts. Pleadings, pre-hearing motions, discovery, hearing and post-hearing
procedures are governed by the Review Commission’s Rules of Procedures.
Simplified proceedings are available for small cases. If the case does not settle,
a hearing will be held before the administrative law judge, usually within 9-12
months after the citations are issued. The judge will issue a written decision
affirming or denying the citations and, for affirmed citations, setting the
penalty and the abatement date.
Review of administrative law judge decisions is conducted by the three-member Review Commission in Washington, D.C. Although any party may
request review, or any member of the Commission may call the decision on
his or her own motion, review is not a matter of right. Appeals of Review
Commission decisions are taken directly to the U.S. Court of Appeals.
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