Getting ready for and managing an on-site visit by OSHA
Friday, February 15, 2019
Employers subject to an on-site inspection by OSHA or one of the state agencies that regulate workplace safety and health should take preventive steps to prepare for such an inspection and have a plan for handling it and any follow-up that may be necessary. This article outlines best practices for getting ready for and managing such an inspection.
Prior to an Inspection
As with most things in life, it is better to be prepared before a crisis than to simply react at the last minute. In anticipation of a visit by OSHA, we recommend that employers:
Display the OSHA poster where notices to employees are posted.
Display a written commitment from management to workplace safety.
Conduct a tailored safety audit and hazard assessment to spot and correct any hazards.
Assign responsibility to a management official for safety and health compliance and for dealing with employees, OSHA, and others concerning workplace safety and health.
Determine which OSHA standards and regulations apply to your workplace. Ensure that all required written programs, plans, training and recordkeeping are complete and updated annually. Ensure that the facility’s personal protective equipment (PPE) hazard assessment has been completed.
Train designated management personnel how to properly handle and respond to an OSHA inspection, as well as approaches by law enforcement officials, building or fire inspectors, and inspectors from other safety regulators.
Determine company policy on whether to require a warrant prior to allowing an inspection to be conducted.
Foster employee participation in safety and health management. Instill employee commitment to safe work practices.
Establish a crisis management team to deal with catastrophic occurrences, fatalities, and related media attention.
Ensure that injuries and illnesses are properly recorded and supporting documentation is up-to-date and available.
Ensure that Hazard Communication Plans and related materials are available.
Provide appropriate equipment (i.e. camera, video, monitoring, etc.) for conducting inspections.
Review previous citations. Ensure that all previously-required abatement has been completed, and previously-cited hazards have not reoccurred.
Ensure coordination between all employers on multi-employer work sites.
Know and follow reporting requirements for work-related fatalities, amputations, loss or an eye and hospitalization of one or more employees.
Handling the Inspection
OSHA’s visit can be broken down into three phases: initial contact with the Compliance Officer (CO); the walkaround; and the closing conference. With proper planning, each of these steps can be managed effectively.
1. Initial Contact and Opening Conference
Upon arrival, direct the CO to the company’s designated Safety Officer who will take the lead in managing the process for the Company. Here are a few tips for this process:
No employees, other than the facility manager and/or the company’s designated Safety Officer, should communicate with the CO prior to the opening conference.
The company’s facility manager or Safety Officer should review the CO’s credentials and obtain his or her business card with an address and phone number.
Determine from the CO the purpose, scope, and any other significant reasons for the visit to the facility. If the inspection is based upon a complaint, ask for a copy of the complaint and attempt to limit the inspection to those matters described in it.
Determine whether the CO has a warrant to conduct the inspection. If yes, determine the scope of the warrant and take action as appropriate to limit the inspection to that scope.
Notify the company’s counsel prior to the opening conference to receive any instructions or to raise defenses or objections.
Notify any designated employees’ representative (if applicable) of OSHA’s presence.
Participate in the opening conference with the CO to establish: (i) areas of focus for the inspection; (ii) scope and route for the walkaround; (iii) any designated trade-secret areas or processes; (iv) procedure for conducting employee interviews and/or producing documents; (v) schedule of interviews; (vi) documents to be reviewed; (vii) procedure for requesting copies of any employee complaints; (viii) rules and procedures OSHA will be expected to follow; and (ix) procedures for conducting air or noise monitoring or sampling.
Provide necessary safety and health training to the CO prior to allowing access to restricted areas.
Ensure that the CO wears all necessary personal protective equipment and follows all required company safety and health policies.
2. The Walkaround
As with the opening conference, the company safety officer or manager should accompany the CO at all times during the inspection except during interviews of hourly employees.
A company safety officer or manager should take detailed notes, including date(s) of inspection, areas inspected, matters discussed with the CO and identifying employees interviewed by OSHA.
If, during a complaint inspection, the CO deviates from matters implicated by the complaint, then the company safety officer should inquire as to the reason for such deviation.
When appropriate, photographs should be taken of all areas inspected by the CO as well as all scenes and items photographed. Video should be utilized if the CO makes any video records.
The company’s designated safety officer should immediately correct any hazards identified by the CO, if possible, but should not acknowledge that there is any violation or that a citation would be appropriate.
No management or supervisory employee should provide information or make statements to the CO without approval from the company’s designated safety officer or the company’s counsel. The company’s designated safety officer or counsel should be present at all management or supervisor interviews conducted by the CO.
All applicable work rules and safety procedures should be enforced in connection with the CO’s walk-around team during the inspection.
The CO should be asked to make in writing all requests for Company information and/or documents.
The company’s counsel should review all requests for documents and information as well as the information and documents themselves prior to such being provided to the CO.
Document all samples or monitoring tests taken by the CO. Request copies of all sampling and monitoring results and reports, as well as all photographs and videos taken. The company should request that the CO schedule any sampling and monitoring activities at times when the company can conduct its own sampling and monitoring. The company’s designated safety officer should advise the CO that only side-by-side monitoring will be permitted.
3. The Closing Conference with OSHA
During the closing conference, the company’s designated safety officer should simply listen to any proposals made by the CO, gather information and:
Not argue or debate any proposed findings.
Take detailed notes about any alleged hazards (or other problems) identified by the CO, along with applicable safety standards and suggested abatement procedures.
Remind the CO about the scope of the inspection as noted in the opening conference, if deviation has been observed.
Obtain from the CO an acknowledgment of receipt concerning documents provided.
Provide the CO with the name, title, address, phone and fax numbers for the person to whom all correspondence should be directed.
If directed by the Company’s counsel, provide additional information and documentation relevant to and supportive of the Company’s position, as well as any information that establishes abatement of any alleged violation.
After the Inspection
Following the inspection, other actions may be required, including:
Follow-up on all sampling and monitoring reports from OSHA, if not previously obtained.
Review all areas noted by the CO and implement appropriate abatement.
Provide the company’s counsel with copies of all documents provided to OSHA and all of the notes, photographs, videos, etc., taken during the inspection.
A written request to OSHA to ensure that all trade secrets and proprietary information disclosed during the inspection are kept confidential.
If the facility is issued safety violation citations, you must also:
- Post the citation in an area where employee notices are normally posted with penalty amounts deleted. (check rules applicable to state plans concerning posting requirements.)
- Immediately notify the company’s counsel about the safety violation citation and send a copy to counsel.
- With the advice of counsel, schedule an informal conference with OSHA.
- Post the OSHA Notice to Employees of informal hearing.
Where an agreement cannot be obtained quickly, the company must file a Notice of Contest within 15 working days following receipt of citations. Some state plan states have different procedures. An employer who misses a deadline for filing a Notice of Contest is ordinarily prohibited from obtaining an extension or to overcome the default.
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