“OSHA is at the door.” Those words can strike fear into the hearts of employers, especially those in the construction industry or other industries frequently targeted for inspections by the federal agency governing workplace health and safety. OSHA in most cases does not announce beforehand that it’s coming. Nonetheless, there are things you can do in advance to prepare for a potential inspection.
OSHA in FY 2019 conducted 33,401 inspections, according to U.S. Department of Labor Occupational Safety and Health Administration data. This tally exceeded each of the previous three years. Construction firms are inspected more than any other industry because the sector accounts for more than 1 in 5 of all worker deaths in the United States, according to OSHA. In addition, the agency focuses heavily on other industries with high worker illness/injury rates, including health care, agriculture, maritime and oil and gas.
As COVID-19 began to spread across the country in the spring, OSHA announced that eliminating coronavirus-related hazards would be a top priority for 2020. On-site inspections will focus primarily on high-risk workplaces, such as hospitals and other healthcare providers, in geographic areas with elevated transmission rates, the agency said. Workplaces with high numbers of COVID-19-related complaints or sicknesses will be targeted as well, according to OSHA.
Generally speaking, OSHA takes a six-tiered approach to prioritizing its inspection resources. Imminent danger situations, where a known hazard could cause death or serious harm, receive top priority. Next up are workplaces where severe injuries or illnesses recently occurred. Worker complaints of hazards or violations are in the third slot, followed by referrals of hazards from other government agencies, individuals, organizations or the media. Targeted inspections, which concentrate on high-hazard industries or workplaces that have had high injury or illness rates, are next on the totem pole. At the bottom are follow-up inspections, in which OSHA checks to see if previously cited violations have been corrected.
Designate a member of your management team to be your company’s OSHA representative. This person will be charged with accompanying OSHA’s compliance safety and health officer throughout any inspection. In addition, appoint a deputy representative, in case the designated representative is unavailable at the time of OSHA’s visit. Both individuals should be trained in how to represent the company’s interests during an OSHA inspection. They should also be experts in your company’s health and safety program, as well as in the OSHA standards that apply to your industry and company. When accompanying OSHA on the inspection, the representative should document what they witness, such as areas inspected and employees interviewed, and take photographs as applicable. This documentation will be useful later if the company has to defend itself against a citation. Representatives should be trained in what to say and what not to say to an OSHA officer, and when to consult legal counsel.
The best preparation for an investigation is having a robust health and safety program in place. The program should be led by a safety officer, chief human resources officer or other professional with expertise in OSHA compliance, and all staff members should be educated in applicable OSHA standards. Documentation required for OSHA compliance should be completed and updated in a timely fashion. Self-audits of facilities and procedures should be performed at regular intervals. To encourage self-audits, OSHA adopted a final policy in July 2020 regarding treatment of voluntary employer self-audits. The agency will not routinely request self-audit reports at the initiation of an inspection, nor will it use them to identify hazards on which to focus during an inspection. Further, where a voluntary self-audit identifies a hazardous condition, and the employer has corrected the condition prior to the initiation of an inspection and has taken appropriate steps to prevent recurrence, OSHA will refrain from issuing a citation, even if the condition existed within the six-month limitations period during which OSHA is authorized to issue citations.
At Sheehy Ware and Pappas, our attorneys are always happy to present on OSHA topics and best practices to help educate and prepare our clients and their employees for an OSHA inspection. If you need assistance with preparing for an OSHA inspection or any other OSHA matter, give us a call.