Fortunately, most employers likely will never be involved in an OSHA inspection. But for those employers who do become involved, their initial responses can range from annoyance to sheer panic. Unfortunately, if employers do not respond appropriately from the outset, they potentially could waive important legal rights or face civil citations or potential criminal liability if there has been a fatality.

This article will highlight what to expect during an audit, your rights as an employer and how to talk to your employees during an inspection.

FIRST STEPS

Before OSHA can consider conducting an inspection, they must have legal probable cause to do so. When the inspector arrives and announces his or her intent to conduct an investigation, you have a right to ask the inspector for credentials and inquire as to the basis for the inspection before agreeing to allow it to proceed.

Typically, the inspector will inform you that (s)he is there because:

  1. A written employee complaint alleging a hazard was filed;

  2. There has been an accident (in some instances you must notify OSHA of an accident within 8 hours where there has been an employee fatality, or three or more employees who have been injured and required medical treatment in one incident); or

  3. OSHA selected your company for an inspection based upon a program developed by the agency to address or target a specific workplace hazard (e.g., lead, asbestos, forklifts, etc.).

Remember, the compliance officer is required to inform you the reason for the inspection. In the event that it involves an employee complaint, you are entitled to receive a copy of the written complaint (without the name of the complaining employee). Likewise, you should ask for information on the specific programmed inspection that the inspector is relying upon.

Once this information is provided, it is critical for you to immediately contact additional members of your company's senior management team, as well as legal counsel if there has been an accident involving personal injury or significant property damage. Strategize whether you should allow the inspection, and if so, determine the scope of the inspection at the site and who you will select for your walkaround team.

You should inform the inspector that this contact is occurring and that you will respond in a timely fashion as to whether you will voluntarily allow the inspection (without a search warrant). The inspector is required to wait a “reasonable time period” before commencing the inspection to allow this communication to occur within your company.

EVALUATING PROBABLE CAUSE

Your company, now confronted with a potential inspection, must decide whether to allow the inspection and do so in a timely manner. Consider the following:

  1. Regarding an employee complaint:

    1. Is the complaint valid?

    2. Does it identify the correct workplace, employer or equipment?

    3. Does it identify a hazard that in fact exists at the worksite?

  2. Concerning an accident:

    1. Did an accident in fact occur involving the employer?

    2. Is the accident scene still in existence or have the conditions changed? (Note: If the accident involved a fatality, the scene is considered immediately “frozen” and cannot be changed until OSHA commences its inspection and “releases” the site. The only exception is to allow the employer to shut down equipment which may create a hazard to employees; to respond to a hazardous materials incident, such as a spill or release; or to remove human bodily remains resulting from the accident).

  3. For a programmed inspection:

    1. Does your company fall within the criteria for the programmed inspection (i.e., does the hazard exist at the workplace)?

    2. Does your company have another basis to challenge its selection under the program criteria (e.g., its accident, injury or illness statistical data fall below the criteria for authorizing the agency to conduct a programmed inspection and thus the employer should be exempted from the inspection)?

The process of evaluating a probable inspection should involve your company's safety and health professionals, senior operations personnel and, when there has been a fatality, serious personal injury or significant property damage, legal counsel.

THE INSPECTION'S SCOPE

Assuming that you have decided to allow an inspection on a voluntary basis (you also have the option to demand a search warrant from the agency, which is a technical legal decision that must involve legal counsel), the next issue will involve the scope of the inspection; that is, where will the inspector be permitted to go while at the work site and what operations the inspector will be allowed to view. This determination also is critical. If you allow the inspector broader access than would be allowed to evaluate (1) the “hazards” identified in the employee complaint, (2) the “accident” site area, or (3) hazards that are outside the scope of the hazard referenced in programmed inspection, your company is subject to citations for anything that the inspector observes because you voluntarily allowed a broader inspection to occur. Whatever the inspector observes during the walkaround that is in “plain view” is subject to citation.

Your determination should be on a case-by-case basis considering the current work site operations and the reason for the agency's inspection. Once the determination has been made by members of your company's senior management team, this decision must be communicated to the inspector in order to reach an informal agreement, if possible, regarding the scope of the inspection.

YOUR RIGHTS

As an employer, you have the right to inform your employees of their rights during the inspection. You also have the right to participate in non-private employee interviews and, if the compliance officer refuses, require that the interviews occur on non-paid work time.

You also have the right to stop interviews if they become disruptive (they unreasonably interfere with ongoing work) or confrontational, in which case the employer should consult legal counsel regarding the termination of the inspection.

YOUR EMPLOYEES' RIGHTS

When faced with an OSHA inspection, you should always take the opportunity to inform your employees of their rights:

  1. OSHA may want to speak with them about a particular incident or complaint, or about safety issues in general;

  2. The employee has the right to be interviewed or may decline;

  3. If the employee so desires, he or she can request that a manager be present during the interview, but that the interview may also be done privately;

  4. If the employee desires legal counsel, he or she should advise the inspector;

  5. If you agree to make the company's legal counsel available and the employee agrees to representation by this attorney, you have the right to have such counsel represent the employee at the interview;

  6. Under any circumstance, the employee must answer the inspector's questions truthfully, and must not speculate as to what the answer may be if the employee does not personally know the answer;

  7. The employee has the right to end the interview at any time; and

  8. The employer will not retaliate, in any way, against any employee for participating in an OSHA interview or for telling an OSHA inspector the truth.

Please keep in mind that the employer should strongly consider providing an interpreter for the interview, should your employee not speak the same language as the OHSA compliance officer. If your employees give responses that are confused or incomplete because they cannot understand the questions, this provides an opportunity for citations to be issued to you and your company on the grounds that the employee is not properly trained and does not understand the company's safety and health programs.

While you can anticipate that there will be continued tension between employees, employers and OSHA over the issue of employee representation in employee interviews, you should continue to inform your employees of their rights to allow them to exercise them in a voluntary, consensual manner. If they are not informed, they may waive significant legal rights and expose themselves and your company to potential legal liability.

BE PREPARED

Remember that when OSHA seeks to conduct an inspection, they must have legal probable cause to do so and must provide you with the reason for the inspection. Before deciding whether to allow the inspection, immediately contact additional members of your company's senior management team, as well as legal counsel, to evaluate the reasons for probable cause.

If you decide to allow the inspection, discuss the scope of the inspection, including where the inspector will be permitted to go at the site and what operations the inspector will be allowed to view. And, of course, you have the right to inform your employees about the inspection and discuss their rights.

While most employers may not embrace an unexpected OSHA inspection, understanding your rights and what is expected of your company can make the process go smoothly.

Mark A. Lies II is the attorney for the National Association of Tower Erectors (NATE) and a partner in the Chicago office of Seyfarth Shaw LLP Attorneys. His primary practice areas involve occupational safety and health law and employment law. In his occupational and health law practice, he has represented employers on a national basis in complying with occupational safety and health regulations, as well as representing employers during OSHA inspections, OSHA citation enforcement proceedings and trial of OSHA cases before federal and state agencies and appeals to federal and state court. Lies has trained local ASSE chapters on professional liability issues which arise with safety and health consultants. Questions can be directed to industryrelations@natehome.com.