OSHA's authority comes out of federal law that requires employers to maintain a safe workplace for employees.  The law covers most non-government employers in one way or another.  All employers have good reasons to comply with OSHA requirements.  First and primary is the genuine reduction in hazards (and the corresponding lower likelihood of having on-the-job accidents) when OSHA rules are followed.

Additional reasons include the fact that employers who simply ignore OSHA rules are much more vulnerable to future employee complaints, inspections, initial and repeat violations.  Once cited, these employers go into that aforementioned database and are subject to closer scrutiny and follow-up inspections.

Usually, OSHA does not seek criminal penalties unless someone in authority at the employer company willfully and negligently violates an OSHA standard, and this results in an employee's death.

Anatomy of an OSHA inspection

Inspections generally are unannounced. In fact, if someone warns an employer without proper authorization prior to a scheduled OSHA inspection, they can be fined and jailed.  There are special circumstances when OSHA may give prior notice to an employer.  These special circumstances might include alleged "imminent danger" situations when correction may be needed as quickly as possible.  Prior notification also may be given if the inspection needs to be made after normal business hours, if the employer will need to make special preparations, or if the local OSHA Area Director feels that prior notice will result in a more complete and effective inspection.

As part of planning for an OSHA response, employers should consider their right to require a warrant prior to allowing OSHA on site to perform an inspection.  Click here to see additional considerations.  

The advantages and disadvantages of exercising this legal right should be discussed with the employer's attorney.  Most of Safety Advantage's Clients have elected to welcome the compliance officer into their workplace under a policy that requires that designated in-house safety or key management personnel and the employer's safety consultant accompany OSHA on any inspection. 

It is important to consider that this policy supports full cooperation with OSHA during an investigation and DOES NOT refuse access to the workplace.  It does, however, require the attendance of employee representatives that can provide the most accurate information to the compliance officer. 

The receptionist or employer representative who first greets the OSHA compliance officer should escort him or her to a conference room or office, offer coffee or a cold drink, promptly contact designated key persons and maintain a friendly, courteous manner. 

At NO TIME, however, should the compliance officer be allowed to roam the premises alone or begin inspection of documents until the designated key persons are available in accordance with established written OSHA response protocols.

In our experience, a compliance officer will appreciate the need for obtaining accurate information during the inspection and will allow a reasonable time for designated company safety representatives to assemble.  Because this policy is part of the employer's written safety and health program, a compliance officer is unlikely to encourage personnel to disregard established safety policies and procedures.     

1. The "opening conference"
    
2. A review of written programs, safety training and other safety records, followed by a "walk-around" of the workplace and (usually) interviews with employees
    
3. The "closing conference"

Opening Conference

During the opening conference, the compliance officer should explain the reason(s) for the inspection.  This is a good time to examine the compliance officer's credentials and confirm them by calling the local OSHA office. 

The employer's designated safety representative and / or on-site supervisor should be the in-house primary representative during the opening conference.  Additionally, the company's safety consultant should attend (if possible) to help prepare for any special "parallel" inspection procedures or industrial hygiene monitoring that may be on the officer's agenda. 

If the inspection is the result of an employee complaint, the scope of the inspection should be limited to the complaint.  In any event, the focus of the inspection should be clearly understood by management and the compliance officer should be expected to follow this focus.  One reason that it is essential for the compliance officer to be accompanied by a designated employer safety representative at all times is to help confirm that the inspection transpires in accordance with the inspection focus.  If, during the inspection, the compliance officer goes beyond the focus as explained in the opening conference, the employer may consider withdrawing permission for the inspection and immediately terminating the visit until a warrant is presented.

One of the company representatives should take written notes during the opening conference.

Records, Programs Review & Walk-Around

Immediately following the opening conference the compliance officer usually will ask to review injury records, along with mandatory written safety and employee training programs.  Expect requests for:  OSHA 300 logs, your written Hazard Communication Program (chemical safety), lockout and tagout procedures, hazard assessments for selection and use of personal protective equipment, electrical, fire safety, forklift and crane/hoist/rigging safety programs as they are applicable to the workplace and inspection focus.

The compliance officer may ask to see specific employee medical records. Remember that, because of the employees' privacy rights, medical records should not be presented unless the affected employee has given written consent.

During the subsequent walk-around and employee interviews the compliance officer will try to confirm that written safety programs are in fact implemented.  Assign some other member of management to notify department managers and other supervisors on site about the OSHA inspection underway.

The compliance officer usually will focus mainly on the items of the complaint, or specific hazards or situations that were discussed in the opening conference.  Remember, however, that the officer has authority and duty to act on any other hazards or noncompliance observed while on the premises. 

The employer has the right to have one or more designated representatives accompany the compliance officer during the inspection and to remain with the officer at all times, except when the officer is talking privately with an employee.  These designated representatives should be knowledgeable regarding worksite operations and the employer's safety policies.  Representative also should be familiar with OSHA requirements for specific  work areas.

Information obtained by the compliance officer during the inspection will likely be the basis for allegations of OSHA violations and resulting citations.  This is why employer representatives should take good notes during the inspection. 

If the compliance officer takes photos or shoots video, an employer representative should do likewise.  If the compliance officer takes samples, does noise or industrial hygiene monitoring, the employer should perform "parallel" monitoring and sampling as a control and for documentation in the event citations result from the officer's tests.

If the employer has operations or processes that are classified as trade secrets or confidential, make sure that the compliance officer is made aware of this and is instructed to protect the employer's interests in accordance with confidentiality requirements allowed under OSHA law.  Keep a written log and inventory of records, equipment or other items provided on request of the compliance officer.

Employee & Supervisor Interviews, Corrective Actions

The compliance officer is likely to interview both line employees and supervisors.   Statements made by non-supervisory employees do not "bind" the company and, consequently, generally cannot be given in the presence of a management representative or the employer's attorney.

On the other hand, supervisors statements can bind the employer.  Consequently, employers are allowed to have a member of management or an attorney present when supervisors are interviewed. Supervisors are generally classified as persons who direct work and make or participate in hiring and firing decisions. 

While the employer should adopt a policy and attitude of courtesy and cooperation with OSHA, as a basic rule a supervisor or management representative should NOT talk with a compliance officer about the operation of machines or processes, or demonstrate how equipment or machines operate.  Such impromptu discussions may not accurately explain actual operations or circumstances and, inadvertently, be seen as an admission of guilt or violation of an OSHA requirement.  The employer's attorney should be involved in any such discussions when they are held with appropriate management representatives.

If the compliance officer asks to interview an employee in private, this can be scheduled at a time when the employee is not assigned to do work and is available for the meeting.  Prior to the interview, the employer should tell the employee about the rights he or she has.  An employee is NOT required to sign a statement.  If the compliance officer writes out a statement, the employee has the right to read the statement very carefully before signing to make sure that it is accurate.   The employee also has the right to receive a copy of the statement. 

During the inspection, the employer should be prepared to make immediate corrections and / or repairs where possible.  The employer representatives should be sure that the compliance officer makes note of any immediate corrections in his or her report.  Officers generally have the discretion to not seek citations for certain types of hazards if correction is accomplished during the inspection.  

The Closing Conference & Subsequent Citations

At the conclusion of the inspection, the compliance officer should hold a closing conference with the employer's designated representatives.

The officer should relate any OSHA violations and unsafe situations observed.  If the employer acknowledges that a violation or unsafe situation exists, it may be prudent to document any efforts underway to make correction or achieve compliance.  This will help establish the estimated time that will be required for abatement.

Understand that, while the compliance officer has primary input, he or she is NOT the individual who makes the decision about what citations will be written and proposed penalty amounts.  Those calls will be made by the local Area Director.  Any citations will be issued within six months of the inspection. 

In the event that a citation is issued, the employer must follow instructions included with the citation.  This includes posting the citation in a prominent location in the workplace where it can be read by employees. 

Should the employer elect to contest a citation or penalty, written notice must be made to the OSHA Area Director no later than 15 working days after receipt of the citation.

Employers have the right to request an "informal conference" with the OSHA Area Director or the director's representative to present reasons and evidence why a citation or penalty should be reconsidered.  The informal conference may result in a negotiated settlement agreement between the employer and OSHA with modified or deleted citations and reduced or dismissed penalties.