by Felix C. “Pete” Wade, Ice Miller LLP
OSHA inspections can add a level of stress and frustration to any workplace. Be prepared with this information from ICE Miller LLP.
How does OSHA arrive at your workplace?
The worst possible way is that you have had a death or hospitalization of three or more employees. You have to report the incident within eight hours to OSHA. The less drastic and dramatic ways that OSHA may be at your door include the following:
- National, regional or state plan emphasis programs. The plastics industry is currently the subject of an isocyanate national emphasis program. Emphasis programs can address chemical exposures and/or workplace processes.
- Poor health or safety statistics for your facility.
- News reports of an accident or injury.
- A programmed inspection, which may fall under any of several special emphasis programs.
- A complaint filed by an employee, doctor or EMT. Complaints often occur when a disgruntled employee is terminated. Other complaints arise during union negotiations or union organizational efforts.
There is nothing that a company can do to stop OSHA from commencing an investigation. There are things that can be done which can assist in avoiding an OSHA inspection.
How to best avoid an OSHA inspection.
The best offense is a good defense. The best way to avoid OSHA inspections is to run a safe operation. How is that task most effectively done?
- Designate a person responsible for safety.
- Have a safety committee with specific functions.
- Audit safety practices and protections.
- Have a written safety program.
- Have safety rules.
- Do employee safety training.
- Document safety training for employees.
This process will insure that you know the regulations that apply to your workplace and that you follow them. An emphasis on safety with your employees and an effort to engage them in a safety culture results in lower injury and illness rate for employees. OSHA has proposed an injury and illness prevention program regulation. While this regulation may be unnecessary, OSHA provides a number of very beneficial tips on its website (www.osha.gov) for developing such a program on a voluntary basis.
What to do if OSHA appears.
No one likes to receive a call from reception that an OSHA inspector is waiting in the lobby. As attorneys for businesses, we like to know as early as possible that our clients are in the middle of an OSHA inspection. A call to counsel while the compliance officer is waiting makes certain that counsel will be available to answer questions as an inspection progresses.
A company does have a right to refuse entrance to its facility unless OSHA has a court-issued warrant. It is almost never beneficial to insist on a warrant. OSHA will get a warrant, and fighting a warrant that is properly issued runs up legal costs unnecessarily. More importantly, you do have a right to know why the investigation is taking place. This occurs in the opening conference with the compliance officer.
When you meet with a compliance officer, you want to find out if they are a safety specialist or an industrial hygienist. Both can recommend citations. You probably will get a hint as to the focus of the investigation if you have drawn a hygienist. You are entitled to ask why they are present. They should tell you that their inspection is pursuant to a complaint or is part of some programmed inspection. If the compliance officer wants to look at OSHA logs showing your accidents and illnesses, do this first. They also may want to review your hazard communication or other written plans.
If this is a complaint inspection, make sure that you accompany the inspector to the area where the complaint arose. This can involve driving the inspector around the building through a loading dock or entrance closest to the complaint area. If a compliance officer sees violations on his way to an area that is the subject of a complaint, he will cite those violations. Therefore, providing the least access to your facility in a complaint inspection is recommended.
If the inspection is a general “wall to wall inspection,” make sure to have the same person with the compliance officer at all times.
In all inspections, what you say can and will be used against you. If you are asked questions and are unsure of the correct answer, say that you will check with the people who know best and get back with the compliance officer. If you are asked for documents, ask the compliance officer to provide you a list at the close of the inspection and you will collect them. Give them to OSHA with each page numbered so you know what OSHA has received.
If OSHA asks to speak with employees, set up a conference room so that they are not distracted in production areas. Advise employees that they do not have to talk with OSHA, but that you have no objection. Tell them that they should not sign anything where the OSHA inspector puts words in their mouths. Make sure you tell them to tell the truth and that they should get a copy of any statement they may sign and give to OSHA.
Make certain that you and your supervisors tell the truth. Citations may or may not be issued. OSHA’s most serious penalties – its criminal penalties – are only available where there has been an industrial death or where individuals have been untruthful. Therefore, it is very important to be very specific and factual in your responses to OSHA. Giving yourself time to collect information and documents assists in ensuring that you are answering the right questions in a truthful manner.
Following the compliance officer’s inspection, he or she will conduct a closing conference. He or she will tell you their initial thoughts on what they have seen. Thereafter, the compliance officer will file a report with the OSHA Area Director, who will issue any citations that they believe to be appropriate. Do not think that a citation is the end of the world. There are multiple means for reducing or eliminating the citations through informal settlement discussions or in litigation. OSHA’s procedures post-citation are the subject of another article.
Felix C. “Pete” Wade is a senior partner at Ice Miller, LLP in its Columbus office. Wade has been the past management chair of the ABA/OSHA committee and currently serves on the planning committee for the annual meeting of the ABA/OSHA committee. He counsels businesses on OSHA compliance issues, negotiates settlements with the Agency and the Solicitor of Labor and litigates cases before Administrative Law Judges and the Occupational Safety & Health Review Commission. He can be reached at Ice Miller LLP, 250 West St., Columbus, OH 43215, by phone at 614.462.2276 or via email at Pete.Wade@icemiller.com.
