Be OSHA Ready
Knowing Your Rights Will Help Protect Your Organization If OSHA Comes Knocking
Picture this. You’re in the middle of a large project and OSHA shows up at your worksite. Standing before you is a government agent whose sole purpose is to identify and cite safety hazards at your worksite. A knock from OSHA (or any government enforcement agent) is disruptive, stressful, and intimidating. But don’t panic. You have far more rights than you realize, and when OSHA knocks, you can (and should) assert those rights to protect your organization.
Reasonable Time, Reasonable Manner
Unless you are in the unfortunate position of having just reported a serious injury to OSHA, you will not know when OSHA is coming. In most situations, it’s illegal for OSHA to give you advance notice. As Murphy’s Law dictates, OSHA will show up demanding an inspection during your busiest time of day, when your project manager is out sick, or you’re shorthanded. Section 8(a) of the OSH Act authorizes OSHA to inspect your worksite, but the good news is this same provision requires that the manner, timing, and scope of the inspection be reasonable.
Keeping this reasonableness requirement in mind, the opening conference is your opportunity to determine why OSHA is there and to negotiate a reasonable scope before the inspection begins. It is a best practice to designate a conference room or other office to conduct the opening conference, which is away from and out of view of your construction site.
Similar to your right to demand a warrant from a police officer who shows up at your house, you have a Fourth Amendment right to demand a warrant from OSHA before letting a Compliance Safety and Health Officer (CSHO) inspect your worksite (unless there is the presence of an imminent hazard). Once OSHA returns with a warrant, they will most certainly scrutinize your worksite more harshly than if you had cooperated initially. On the other hand, if you are unable to reach an agreement with the CSHO on the scope of the inspection or you need additional time to allow the proper representatives to arrive to your worksite, a warrant may be appropriate. This is determined on a case-by-case basis, and you should consult counsel before demanding a warrant.
After you agree to the proper scope of the inspection, you (and your counsel) have the right to accompany the CSHO throughout the inspection. If there are other employers (such as subcontractors) on your worksite, it is a best practice to have a procedure in place for notifying the proper representatives of the other employers that OSHA is on site.
Take detailed notes of what the CSHO is doing during the walk-around, which employees are being observed and anything that is said by management or OSHA. The CSHO will want to take pictures and videos during the walk-around inspection. You have a right to – and should – take the same pictures and videos as the CSHO. If the CSHO wants to take samples or perform testing, you have the right to advise OSHA you do not consent to testing unless and until you are able to perform a side-by-side test conducted by an independent industrial hygienist or other specialist. Down the road, it will be difficult to challenge the results of OSHA’s testing without having your own test to compare.
Because the CSHO is using the inspection to collect evidence to support citations, managers should not volunteer additional information that is not requested and certainly should not admit that he or she is aware of a potential hazard. This is because OSHA imputes knowledge of managers to your organization.
OSHA must prove the following to establish that a standard was violated:
- The standard applied to the cited condition,
- The terms of the standard were violated,
- One or more employees had access to the relevant hazard,
- And the employer knew or, with the exercise of reasonable diligence, could have known of the presence of the violation. In doing so, OSHA can rely on statements made by the employer’s managers at any time during the inspection. It makes no difference if the manager makes the comment during the opening conference, during the walk-around, during a formal interview or in idle small talk – it can be used against the employer.
The compliance officer will inevitably request a list of documents. In most instances, you are only required to provide your OSHA 300 logs within four hours of OSHA requesting them. For all other documents, request a written list of the requested documents and designate one representative to communicate with OSHA regarding your production of documents. This allows you to carefully inspect the list of documents to determine whether the request is reasonable, whether there are any trade secret or privilege concerns in the documents requested, and what documents should be furnished.
It is important that both your management and non-management employees understand their rights and are instructed to tell the truth. Non-management employees are not required to participate in OSHA interviews, but if they refuse, OSHA could issue a subpoena at a later date. If the employee agrees to participate, he or she has a right to a private interview without management and also has a right to refuse to be recorded in any fashion. Any union employees may have a union representative present during the interview as well.
In contrast, management employees have a right to a management representative or counsel during the interview. You also have a right to schedule management employees for a later date, after you have had the opportunity to meet with and prepare the managers. For the reasons discussed above, managers should be prepared in advance for a CSHO interview, should not permit the CSHO to record their interviews in any format, and should not verify or sign off on the CSHO’s notes of the interview.
After the CSHO conducts the walk-around, he or she will conduct a closing conference. This is your opportunity to learn what violations the CSHO believes exist at your worksite and why. This is also a time to note any abatement of hazards that was made during the inspection as well as request a copy of any photographs or monitoring results taken by the CSHO.
After the Inspection
If you receive a Citation and Notification of Penalty, you have the right to contest any citation issued to your organization, including the proposed penalties and abatement dates. Just because OSHA issues a citation does not mean your organization has violated the OSH Act. OSHA is required to prove a violation occurred.
Additionally, you should consider the potential impact of simply accepting and paying an OSHA Citation. While OSHA citations are harmful to any employer, some organizations rely on their safety record to win bids and keep premiums down. Even more troubling, an OSHA citation can be used as evidence of negligence in an accompanying liability case against your organization.
OSHA inspections can be stressful for all involved, but they don’t have to be. Knowing what your rights are and when to assert them will help protect your organization.
- If you are able and time permits, have an attorney present during the OSHA inspection to provide most of the information to the OSHA inspector.
- Notify any subcontractor or other employers on your worksite that OSHA has arrived.
- Reasonably limit the scope, time and manner of the inspection.
- Arrange interviews of management employees at a later date after you have an opportunity to prepare.
- Refrain from volunteering unnecessary information that may impute knowledge of a hazard on your organization.