Managing OSHA Inspections: Preparations to Minimize the Impact

October 2013 • Lockton Companies

L O C K T O N C O M P A N I E S

GREG HOLDER, MSVice President

Senior Loss Control Consultant816.960.9867

gholder@lockton.com

Pre-inspection steps: Designated OSHA contact person

Meet the OSHA inspector and check their credentials. Do not allow access without the proper identification and credentials. Working with the OSHA inspector takes precedence over any other matter with exception of emergencies.

Take the OSHA inspector to the nearest conference room or office, not the plant or offices that may have windows overlooking the operations.

Have the OSHA inspector explain why they are here. If the reason is a complaint, get a copy of the complaint. There should always be a written copy of the complaint that restricts what OSHA can lawfully look at during the visit.

Any complaint should have the specific hazardous conditions and the location of the alleged hazards.

Ask the inspector what he or she would like to do at the plant.

The inspector should explain that written notes, photos, and employee interviews will be part of the inspection. Let the inspector conduct their duties without volunteering information or access.

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Any attempt to wander outside of the areas identified within the complaint should bring you back to the conference room for additional discussion.

This is an excellent time to remember to call the company’s legal counsel and Lockton Companies for advice if you are not comfortable with the process.

Forcing a search warrant

Unless there is a legally legitimate reason for denying entrance to the inspector, then allow the process to move forward. An administrative search warrant is already prepared by the Department of Labor’s Office of the Solicitor and is based on what OSHA would like to look at in your establishment. The warrant is taken to a judge for the judge’s signature.

The ex parte OSHA warrant proceeding is basically a one-sided meeting where the government judge signs the warrant provided by the government lawyer so that the government inspector can do his or her inspection.

On the other hand, you can avoid having to work under the terms of a search warrant by carefully working out an agreement with the OSHA inspector as to what you will and will not allow during the inspection.

Beginning the inspection

Unless entry is refused, follow the established procedures for handling the walkthrough inspection and closing conference outlined within this document.

Generally, OSHA will understand if your OSHA designate or other key members are unavailable for participation at that time. Ask that the inspection be rescheduled at a mutually agreed upon time with all preferred representatives and the OSHA inspector.

The most favorable explanations seem to be those that show a willingness to participate without the unavoidable circumstance currently preventing a proper inspection.

Please read the disclaimer below carefully. This

document is merely the impressions of someone

who has had some experience with OSHA and it is

certainly not intended to be legal advice. Every OSHA

inspector is different and every inspection is unique.

Nobody can honestly claim to have one procedure

that will work for every OSHA visit. If you have any

questions about OSHA visits, you should consult with

an attorney knowledgeable in OSHA matters.

D I S C L A I M E RThis document is not a legal recommendation and

does not represent to be the legal opinions of any

authority. It merely represents the informal personal

opinions and experiences of its author and should

not be construed to be advice. For legal advice and

guidance, always consult with a qualified attorney.

Due to the many possible variables and conditions

that make any regulatory action unique, the author of

this document, persons distributing copies of it, and

their employers do not make any claims, guarantees,

or promises as to the effectiveness of any suggestions

presented in this document. Always consult an

attorney before taking any actions in order to ensure

that the best possible course of action is taken.

October 2013 • Lockton Companies

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OSHA inspection team

The following people should be prepared to accompany the OSHA inspector:

Safety director

Plant manager

Maintenance

Industrial hygienist (if sampling and monitoring are needed or if one is available)

As the OSHA contact person, you are with the OSHA inspector from start to finish.

It is your job to make sure that the inspection process provides the least impact and greatest outcome to your company.

A comprehensive inspection (also referred to as General Schedule) will cover the entire plant as part of the process. A partial inspection should be restricted to only areas specifically identified in the formal complaint.

While accompanying the inspector, treat the inspector with courtesy and do not volunteer any information or documents not yet requested.

The following people should

accompany an OSHA inspector:

SAFETY DIRECTOR

PLANT MANAGER

MAINTENANCE

INDUSTRIAL HYGIENIST

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Items for OSHA inspections

Developing ample evidence to defend against issued citations is a critical part of any future defense. Developing a defense file as you go will make it easier when it becomes necessary to defend the company against citations.

Document log—Log and number each document provided to the OSHA inspector for future reference (i.e., informal conference, defense preparation).

Video camera—You want to inform OSHA that your policy is “no videos, no matter who you are.” Video cameras are best utilized postinspection to tape operations and facilities as documentation if you feel wrongly cited.

Note that if you have a video camera during the walk around, OSHA will feel obligated to use their own video camera and you will have taken away your own basis for objection.

Remember, you want to tell OSHA that your policy is “no videos, no matter who you are.”

Optional: Rubber stamp—“Business Confidential, Do Not Copy—____, Inc.,” to stamp any documents which we give to OSHA.

Optional: Rubber stamp—“Trade Secret, Confidential—____, Inc.,” to stamp any Polaroid photos that OSHA takes in the facility.

Camera with memory large enough for pictures

and/or video clips

Blank note pad and a couple pens

25-foot measuring tape

Keys to open any locked doors or cabinets in the plant

(be prepared to unlock doors only as OSHA asks you to

unlock them)

Don’t forget these items . . .

October 2013 • Lockton Companies

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Records and documents

OSHA inspectors usually ask for copies of safety programs, training records, OSHA 300 logs, and many related items. These may be provided on request. Do not hand over any item until requested in an effort to posture or to save time. They may also ask for copies of safety meeting minutes, notes, insurance loss control reports, internal safety audits, memos, and other materials that expose the inner workings of the company to scrutiny.

They may show that officials of the company had some knowledge of hazardous conditions but possibly did not take reasonable steps to eliminate the hazards, therefore increasing the severity of a violation.

The OSHA 300 logs may prompt the OSHA person to request copies of backup medical records. Other than the First Report of Injury, do not provide medical records. These are confidential. Each relevant employee’s written permission is needed to provide these records to OSHA. Verbal permission is not enough. An OSHA subpoena is also not enough. The only document that

will suffice for release of medical records without written employee permission is a sealed Medical Access Order, which must be signed by OSHA’s medical director in Washington, D.C., among others.

Keeping inspection notes

During the inspection, you should keep detailed notes of all the places in the plant you visited, everything the OSHA person looked at, what measurements and photos were taken, who OSHA talked to, and when and what the OSHA inspector wrote and said. Remember you are participating in a regulatory enforcement action, not a consultation visit. Questions and off-handed comments can be very important later. Although OSHA people often try to be helpful, it is still enforcement and you need to be very careful about what you say.

Correcting alleged hazards during the inspection

Fix anything the inspector points out during the inspection as a show of good faith and a cooperation.

It validates what the inspector says and helps build the positive relationship you will want moving

forward.

All OSHA citations allege that you potentially or actually exposed employees to potential or actual hazards prohibited by a regulation, standard, or common industry practice. Our process and efforts are to deny the legal basis for the citations being issued.

Answering OSHA’s questions

Use care when answering questions. Only answer what is asked. Do not volunteer details. If you do not know the correct answer to a specific question, then do not offer a partial response. Most importantly, do not lie. Exercise restraint and only answer what is asked.

Private employee interviews

OSHA zealously protects its right to interview any/all employees privately. This does not apply to managers or supervisors who can request the company’s legal representative be present for observation and data collection. Upon request, OSHA should give you a copy of any interview statements taken from management personnel.

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Employee interviews are performed to establish employee exposure to safety hazards, without which there is no violation. The list of violations can increase when an employee secretly reports new hazards to the OSHA inspector. This can give cause for the inspector to enter other areas of the plant operations, expanding the scope of the inspection. Employees may file new complaints with the OSHA inspector during these interviews. OSHA almost always does these interviews on company property during working hours. It is important to never discriminate against anyone for talking with OSHA.

Expanding the scope of partial inspections

Comprehensive inspections provide a much greater opportunity for negative outcomes via observations unavailable in a partial inspection. Employee interviews can also provide additional information otherwise not readily observable.

This is an attempt to expand the scope of the inspection to bring home more citations.

You can always take the OSHA person back to the conference room

for a second opening conference where the scope of the expansion and the reasons for it must be specified just like when they first started the inspection.

Closing conference

After the inspection, there should be a closing conference. A closing conference is more than a summary of the inspection, as it is your last chance to change the citations before they are issued. Once the citations have been mailed, the success of any future argument is more limited and harder to achieve. The closing conference is important.

The inspector may decide to have a closing conference over the phone, which can make it easier for you to talk your way out of any violations. Anyone who can contribute or add credibility to your arguments should be there to help.

Remember, you have not been cited yet, so this is your last chance to easily get out of citations.

The basis of a defense is usually the question of whether or not a hazard was created by a given condition, the accuracy of

measurements, accuracy of OSHA’s observations, applicability and scope of the specified regulation, isolated instance of employee misconduct, or most important, the existence of employee exposure to the hazard. You should have a very good idea if you are going to receive citations after the conference is finished, but you usually will not know the fine amounts until formally received.

Informal conference

Request an informal conference within 15 working days from the time you received the OSHA notice with the OSHA area director to discuss the violations and/or the abatement dates.

If you make a settlement offer, it will be taken to mean that you are willing to settle for said amount in the event of a contest, so understand where you are willing to settle. Everything said by anyone on your company’s side will be written down by OSHA during the meeting and will be passed on to the Department of Labor lawyers and can be used against you and your defense strategy.

October 2013 • Lockton Companies

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At an informal conference, OSHA will seldom give up citations that look like they will hold up in court unless you have a strong counterargument. They will instead offer a financial reduction of the penalty.

The penalty is OSHA’s main bargaining tool in any case.

However, there is more to an OSHA citation than just a fine.

OSHA hardly ever reduces a fine by more than 50 percent at an informal conference. They may offer the expedited informal settlement agreement enclosed with most citations if you are considering a quick settlement without the informal conference. Do not easily settle citations you cannot live with. The settlement puts them on your official record and publicly available for viewing. Acceptance of citations also opens you to repeat or willful violations.

Contesting the citations

In certain circumstances, sending a contest letter is a better idea than having an informal conference if the downsides of having an informal conference seem probable. A letter of contest is the most likely and practical way to influence the citation’s amount or severity without going to court.

You will have at least one opportunity for a settlement after giving OSHA a contest letter. Generally, this will be a settlement that is more generous to you than what you could get at an informal conference because by contesting the case, you moved the citation from the OSHA office to the Department of Labor lawyer’s office where there is more freedom to negotiate.

Conclusions

Every OSHA inspection is different; every inspector has a different proficiency and focus, so planning for this event before it occurs provides the best opportunity to minimize the overall impact.

Designated OSHA contacts should understand the inspection process, the rights and obligations of the company, and how to influence the human element side of the equation.

Acceptance of citations also opens you to repeat

or willful violations.

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