Get Ready for an OSHA Inspection
By James B. Meehan, PE, CSP
James B. Meehan, PE, PC
Everyone wants a safe work place, but a visit from OSHA can raise concerns. Because of the negative press covering citations and fines and because of the increased number of complex programs that OSHA requires, these concerns are justified. This article will give some basic background information on how OSHA works and some tips on how to prepare for an inspection.
Preparing for an inspection is an important activity. OSHA's only means to enforce compliance is through inspection. Prepare for the inspection just as you would prepare for a presentation to an important customer or client.
Basic OSHA information
OSHA can conduct an inspection for the following reasons:
- Imminent danger: Allegations of an imminent danger situation will receive highest priority. The inspection will be conducted within 24 hours of notice of the imminent danger to OSHA unless extraordinary circumstances exist.
- Fatality and catastrophe: Accidents will be investigated if they
include any of the following conditions:
- One or more fatalities
- Three or more employees hospitalized for more than 24 hours
- Significant publicity
- Program inspections based upon Federal OSHA priorities
- Employee or ex-employee complaint: Complaints are investigated by inspection or by letter. If OSHA formalizes the complaint by a letter, your letter reply to the complaint is a serious report, not to be taken lightly. Complaints to OSHA that are signed by an employee will always result in an inspection. The inspection, however, may be limited to the items in the complaint.
- Programmed inspection: OSHA Policy requires that programmed inspections will be conducted in industries where OSHA expects to achieve a significant impact or has targeted specific hazards.
- Follow-up inspection: OSHA can re-inspect to assure that an employer has abated the violations that have been cited. Fines are usually approximately ten times higher for "Failure to Abate" citations.
OSHA has a burden of proof for a citation
Before issuing a citation, the OSHA inspector will establish the following factual beliefs:
- A condition existed that violated a regulation
- Employees were exposed to the condition.
- The employer knew or should have known of the violating condition.
- There were feasible means to correct the violating condition.
Time limitations exist on information OSHA can access. OSHA can review records from the previous six months to establish a condition that can be cited. The OSHA 300 Log of Injuries and Illness records, however, must be available for the five previous years.
Components of an OSHA inspection
All OSHA inspections have prescribed steps, and you should be aware of all of them. You have a basic right as an employer to expect that the inspection is conducted at a reasonable time and in a reasonable manner. The following steps are mandatory for the inspectors:
- Entry: The first thing an inspector should do is ask for an official of the employer and present official credentials identifying himself or herself as an inspector.
- Opening interview: The inspector will begin talking about the facility
or visiting with the employer's representative. At this time, all
employers should be freely given the following information about the
- The extent of the inspection or of the limits of the inspection
- The reason for the inspection
- Approximately how long the inspection will take
- How the inspector will conduct the inspection
- Review of records: The inspector will review the past five years of OSHA 300 log records and all of the employer's written programs. Copies may be requested so that the inspector may return to the home office and review the written materials in greater detail. You are required to make copies of written programs and OSHA records available to the inspector if they are requested.
- Walk around inspection: The inspector will walk around the facility to gain a general familiarity with hazards and regulations that may be involved. This is preliminary to the actual, on-floor inspection and the inspector may return to the home office to gather additional information about your particular operation before continuing the actual inspection.
- Employee interviews: The inspector will interview a prescribed number of employees. These are usually confidential interviews unless the employee would like to have you present-and some do. An employee can refuse to talk to an inspector.
- The inspection: The inspector will retrace his or her steps, note alleged violations, and photograph and document those conditions believed to represent a violation.
- Closing conference: The inspector will leave and later return to the facility to discuss the alleged violations and attempt to have the employer set abatement dates.
Rights of an employer
You have several rights as an employer and corporate "person." If you admit an OSHA inspector into your facility and act as a cooperative businessperson, you have waived a number of those rights. Waiver means that you cannot recover those rights by any means. An employer's rights are only preserved by a request for an inspection warrant. This is an administrative (NOT criminal) warrant. It is not adversarial; it preserves your rights, and it is a simple matter of procedure. If you do not ask for a warrant, you have committed yourself to a "voluntary" inspection.
Should you ask for a warrant? Our experience has been that no employer who has required a warrant has regretted that decision. Some employers who have not required a warrant have had regrets. Each inspection or inspector and the timing or reason for the inspection will be different and you must make a decision to require a warrant based upon the immediate facts.
You have several important things to know when an administrative warrant is served: it can only be served upon an authorized employer representative, usually a corporate officer; and that arrangements can be made for the inspection to be conducted at a reasonable time. It does not authorize an inspector to march into your facility accompanied by armed guards. It does mean that the inspection will be conducted at some time during a 30-day period.
When the inspection occurs
An inspector cannot simply walk in and snoop around in your facilities. The inspector is required to enter and announce his or her presence and identity according to an entry protocol. Be sure to train your receptionist or other management personnel who may be in charge during your absence to control entry into your facilities.
A pre-appointed person should always be available to meet the inspector, examine credentials, and require a warrant or submit to a voluntary inspection. This person can also be the only representative of management (a corporate officer) who can be served with the warrant. Do not allow the inspector into your facilities until you or someone you have appointed is present and can accompany him or her.
Inspectors are usually instructed to wait up to 45 minutes, perhaps even an hour, for management to appear. This may not be what the inspector claims, but it is your right. The inspector will ask to see all of your written programs, training certification sheets, hazardous chemical listing, Material Safety Data Sheets (MSDS) for the hazardous chemicals, and OSHA 300 Log. The inspector may request other items, and you are generally obliged to furnish a copy. Know where these items are kept and keep them in good order. Be prepared to have copies made at the request of the inspector.
The inspector may ask for information that the OSHA Standards do not require you to have or to keep. If you do not have these items, such as an employee list with addresses and telephone numbers, you are not required to create a new record.
The inspector will then start on a methodical inspection of the facilities. The employer or an employee representative must accompany the inspector during the inspection. Be sure to have a camera with you and have extra film. Take notes during the inspection and photograph everything that the inspector photographs. Take additional photographs if the inspector appears to miss some detail.
The inspector will conduct employee interviews at various times during the inspection. Employees have the right to be interviewed privately and may request a union representative or other person to also be present. Even employer representatives (supervision or management) may be interviewed.
Answer questions truthfully. Do not volunteer information or profess good intentions. Your casual remarks or careless conversation could be used against you. Do not operate or demonstrate equipment that is not actually being used by an employee. You must show only your normal operation.
Do not permit the inspector to expand the inspection beyond what is specified in the warrant or what was agreed upon before the inspection. Do not allow the inspector to do anything or go anywhere that you would prevent your employees from doing or going. Correct a minor, easily correctable violation as soon as you notice it. Do not wait for the inspector to be first to notice the violating condition.
The inspector will conduct a closing conference to advise you of the alleged violations that were discovered. Review your inspection notes. Prepare for the conference by resolving to listen to the inspector and take notes during his or her presentation. He or she will also ask you how much time is required to abate the violations. Your answer to abatement questions must be only "No comment."
Your best preparation for a potential OSHA inspection is compliance. The Occupational Safety and Health Act has been in effect for over a quarter of a century, and no employer is given the benefit of the doubt if an interpretation of the OSHA requirements is questioned. You add the cost of a penalty to the cost of compliance when you wait to see if OSHA will cite or require you to take certain safety measures. Compliance will be more involved simply because of OSHA involvement.
James B. Meehan, PE, PC, has served nearly one hundred clients throughout Iowa and other states. These clients are estimated to have more than 3,500 employees who have been served by safety recommendations, written programs, training, contest of citations, and other safety consultation. Clients include general industry, construction, and service businesses. The written programs provided have been subjected to dozens of OSHA inspections. They have been accepted as abatement of program citations for those clients who have had previous program deficiencies. The clients have never been cited for the programs that have been designed and installed for them. Mr. Meehan has served as an expert witness in contest of citations for clients and has consulted on the conduct of the contest in over 100 contested citations. Thousands of citation items have been settled, vacated, or abated with his help.
CIRAS News, Vol. 30, No. 3, Spring 1996