- SPECIAL REPORTS
- THE MAGAZINE
Over the past few months, we have assisted clients with more OSHA informal hearings than in any similar period since our company was started 18 years ago. Regardless of whether this represents a more aggressive stance by OSHA or just an unlucky time for our clients, the bottom line is that being prepared can help you avoid costly fines. If you have never been involved in an OSHA inspection, knowing what is going to occur can help put you at ease during the process.
There are several reasons that an OSHA compliance officer may pay you a visit. Planned inspections mean that either your company name or a construction project was pulled from a computer database. When your company is selected, it is based on companies listed as doing business in your state. For construction projects, it is based on building permits and the category under which the permit is filed. In either case, it’s essentially a lottery drawing.
Fatality and catastrophe inspections are generated by a call to OSHA to make a report. Remember that you are required to call OSHA within eight hours if there is a work-related fatality of an employee or if three or more workers have medical treatment for a single incident. The workers don’t have to be from one company, so all of the companies involved are required to make a call.
OSHA might also get a call from an employee or local emergency services, or an OSHA representative may see a newscast or read information in a newspaper that generates a complaint or referral. Complaints are filed by an employee, and referrals come from a source other than an employee. In both cases, OSHA may consider them to be formal or informal. Those that are put in writing and signed almost always generate an inspection. When someone calls OSHA and won’t leave their name, OSHA may call you first to get your side of the story. If all questions are answered correctly, OSHA might not make a visit--unless the person contacting them follows up to report that the information you provided wasn’t true, in which case OSHA might elevate the situation.
Follow-up inspections occur in percentages of all inspections to make certain any potential violations were corrected. Under OSHA’s new Severe Violator Program, any company placed in that program will have a mandatory follow-up inspection.
Many people believe that the inspection doesn’t actually start until the compliance safety and health officer (CSHO or, more commonly, COSHO) announces that he or she is present. However, anything that the COSHO observes from a public place is admissible as evidence. The public roadway or sidewalk that leads to your location is fair game even before the inspection is announced. The locations from which you are observed don’t have to be publicly owned; they just have to be places in which the public is allowed. I know of one instance in which a COSHO ate lunch at a nearby McDonalds and then took some pictures from the parking lot showing fall protection violations before starting his “official” inspection.
When a compliance officer arrives onsite, be sure to avoid antagonism. Knowing your rights and exercising them is not only perfectly acceptable but also advisable to get through a detailed inspection. However, telling the compliance officer that “all government employees are weasels and a drain on our society” won’t win any bonus points on the inspection. (Yes, this actually happened during an inspection I was involved with. Fortunately, it was someone from another company who made the statement, not my client.) Nearly all of the COSHOs I have worked with over the past 30 years were not bad people; in fact, many of them were quite pleasant to be around. Compliance officers have a job to do, and you have to respect that. Of course, if you do come across a COSHO who you believe is being unreasonable and unprofessional, don’t hesitate to call his or her superior.
When a COSHO comes to your location, he or she will first hold an opening conference to tell you why the inspection is occurring and which areas of the site will be inspected. Any company involved in an inspection will have to fill out paperwork indicating the company size, number of employees onsite and federal ID number along with normal contact information. Most inspections also require companies to provide 300A recordkeeping forms from at least the past three years. You legally have four hours to provide the forms with the exception that the most current year’s 300A must be posted for employees to see between February 1 and April 30 of each year.
Most compliance officers will allow up to an hour for a management person or the company’s safety director to get to the location of the inspection. Although this isn’t in the regulations, it has been a standard practice for many years. Always send a knowledgeable representative when possible. Someone who is familiar with the regulations and your rights will represent your firm better than an employee who has nothing to gain or lose from the inspection.
At the end of the opening conference, you have the right to deny admittance to the location and the COSHO will have to leave. However, the COSHO then has the right to obtain an administrative search warrant to require entry. Unless some very unusual circumstances are involved, denying admittance isn’t advisable. The only time in 18 years of consulting that I advised a client to deny admittance was on a construction site that had been harassed for several months by trivial complaints that always generated an inspection. I even called the local OSHA office and told them we were going to deny admittance. After that point, we had no more trouble.
Once the inspection starts, the COSHO will walk around your location. If there is more than one company at the location (such as on a construction site), a representative from each firm may accompany the compliance officer. Any union stewards present will also be allowed to participate. COSHOs generally decide what direction to follow during the inspection, but they will always ask a lot of questions. Never to lie to a compliance officer, but you don’t have to tell everything you know, either. Answer questions with a yes or no when possible, and keep details to a minimum for more complicated questions. At nonunion firms, COSHOs will also interview some of the employees, and you will not be permitted to hear what the employees say.
During the inspection, you have the right to terminate it at any time if you believe that you are being treated unfairly. Again, however, I don’t advise this unless the circumstances are severe.
After the inspection is complete, the COSHO will hold a closing conference. This can occur the same day or anytime up to six months after the opening conference. Any citations must be issued within that six-month timeframe. At the closing conference, you will be informed of any potential safety or health violations that may have been observed. That information has to go through at least two more levels of scrutiny before any citations are issued.
If citations are issued, a certified letter will arrive at the location listed on your opening conference paperwork sometime after the inspection. Once you or a representative signs for the letter, you have 15 working days to ask for an informal hearing. The hearing allows you to discuss the citations with a supervisor or director, including what you plan to do to correct them or if you believe they were unjustly issued. During the hearing, you can present any evidence you have to support your case. The person conducting the hearing has the power to reduce the dollar amount of the citations, combine citations and even delete citations if your evidence suggests that would be appropriate. I always advise firms that have been cited to ask for an informal hearing so the local office will see that they are attempting to comply with OSHA regulations.
If you can’t reach an agreement at the informal hearing, you’ll have to file a contest within 15 work days of signing for the certified letter. A contest elevates the procedures and may require a lawyer in some states, although in most states a a safety consultant or other knowledgeable professional is sufficient. It is normally not advisable to represent yourself unless you have knowledge of the procedures.
This is just a brief summary of how the system works and how you should handle an inspection. The current administration has made a commitment to increase enforcement. Being prepared for an inspection can go a long way toward keeping you out of trouble.
- Employer Rights and Responsibilities Following an OSHA Inspection, www.osha.gov/Publications/osha3000.pdf.
- Occupational Safety and Health Act of 1970, www.osha.gov/Publications/OSH-ACT-reprint-3-09-04.pdf.