“OSHA is at the door” can be scary words for any business to hear. But employers who are being investigated by the Department of Labor’s Occupational Health and Safety Administration (OSHA) do have certain rights. Knowing your rights can help you to be better prepared in the event of an inspection.
OSHA may inspect a workplace for many reasons. The agency’s top priority is investigating workplaces where it believes hazards present an imminent danger of serious injury or death to workers. The next priority is workplaces where a workplace-related death or serious injuries or illnesses have been reported, followed by workplaces where workers have issued complaints about alleged hazards or violations. Referrals of hazards or violations from other government agencies, interested third parties or the media are prioritized next, followed by targeted inspections of specific high-hazard industries as well as individual workplaces that have experienced high rates of injuries and illnesses. Follow-up inspections, to check that previous cited violations have been corrected, are also conducted in certain circumstances.
OSHA relies on the element of surprise, so in most cases, you will not receive any warning of the inspection until you get a knock at the door.
Be Prepared for an Inspection
When it comes to OSHA inspections, the best offense is a good defense. Having a robust health and safety program in place, with up-to-date compliance documents readily accessible, can go a long way in protecting your company’s interests should OSHA come calling. Your health and safety program should be led by a safety officer, and all workers should be trained in it. Make sure OSHA’s employee rights poster is prominently displayed in break rooms or other areas where workers congregate. (If you have a large number of Spanish-speaking workers, it’s a good idea to post the Spanish-language version of the poster, as well.)
Appoint a member of your management team to serve as your company’s OSHA representative, who will be charged with accompanying OSHA throughout a potential inspection. In case this person is away on vacation or otherwise unavailable when OSHA visits, appoint a deputy OSHA representative, as well. Make sure both individuals are experts in your company’s health and safety program and that they are trained in how to best represent your interests during an inspection – including knowing what they should say, what they should not say and when they should consult legal counsel. You also have a right to have an attorney present throughout the inspection.
An action plan, which outlines the steps to take in the event of a surprise OSHA visit, should be established in advance and immediately activated when the compliance officer shows up.
The Opening Conference
When the OSHA compliance officer arrives, you have a right to request that the inspection be delayed until your chosen inspection representative (and attorney, if applicable) are on-site. OSHA will typically wait for up to one hour, which will also allow for last-minute preparations before the inspection.
The inspection will begin with an opening conference, during which you should ask the compliance officer to produce credentials along with the reason for the inspection. If the inspection resulted from a complaint from an employee or another party, ask to see a copy of the complaint. Also, ask the compliance officer about the intended scope of the investigation and find out whether OSHA has a warrant.
In most cases, you have a right to demand that OSHA obtain a warrant prior to investigating. However, this is generally not advisable, except in certain situations, which need to be evaluated on a case-by-case basis. OSHA will interpret the demand for a warrant as a hostile act and will assume you are hiding something. This likely will result in the agency conducting a broader inspection once it obtains the warrant.
A better strategy is to informally negotiate a narrower scope for the investigation, including limiting which documents will need to be produced, which witnesses will be interviewed, and which parts of the facility will be made available for the inspection. However, keep in mind that even if some areas are off limits, anything in the compliance officer’s plain sight is considered fair game.
Your OSHA representative, and attorney if applicable, should accompany the OSHA compliance officer on the walk-around. All parties should wear the safety equipment that is required in the areas being inspected, if applicable. Your OSHA representative should keep detailed notes of what is said during the investigation. If the OSHA inspector takes photos or videos, your representative should photograph or videograph the same things.
The OSHA inspector will probably ask to interview employees. The presence of your OSHA representative and attorney are typically only permitted during interviews of managers, not rank-and-file employees. Employees may ask that their own representative, such as a union shop steward, be present for the interview.
You are advised to meet with each employee prior to their interview. Employees should be counseled to avoid commenting on issues for which they do not have first-hand knowledge, speculating on issues that may fall outside of their expertise, or agreeing to leading questions that may not be accurate.
OSHA has indicated its plans to increase the use of video and audio recording in employee interviews, as opposed to just taking written statements. OSHA can only record with the consent of the individual speaking, and we recommend against giving consent to have your statements or other speech recorded.
Keep in mind that, even when the conversation is not recorded, whatever your OSHA representative and others say during the walk-around and afterward are on the record and can be used against you if it is relevant to the investigation. Generally speaking, the less said to the OSHA compliance officer during the inspection process, the better.
The OSHA lawyers at Sheehy, Ware, Pappas & Grubbs have successfully represented hundreds of businesses in OSHA investigations. Contact us if you are looking to prepare for the OSHA inspection process or if you need assistance with another OSHA matter.