Under President Barack Obama’s administration, employers face a reinvigorated Occupational Safety and Health Administration. In-house counsel must ensure that his or her company is prepared for an OSHA inspection and that employees know what steps to follow when a compliance officer shows up at the plant gate. If an attorney cannot accompany an inspector during an inspection, a designated safety officer or properly trained supervisor should be prepared to do so.
What follows are key areas to focus on to ensure that a company is ready when OSHA knocks.
• Pre-inspection: Virtually all OSHA inspections take place without prior notice. The designated representative should be prepared to attend the opening conference, accompany the OSHA inspector during the inspection, and handle requests for records and interviews of employees. He or she also should notify the legal department immediately upon learning that the inspector has arrived.
The company representative should be familiar with relevant OSHA standards applicable to the business, including recordkeeping regulations. The company representative also should understand the employer’s general approach to when, if ever, to demand a warrant before allowing an OSHA inspector access to the premises.
Because routine violations can add up to large penalties, employers should conduct ongoing audits to ensure that all required records are up to date, safety equipment has been inspected, required procedures are updated and available, and that obvious hazards (e.g., blocked exits) are addressed promptly. The time to discover these routine problems is not during an inspection.
• The opening conference: An OSHA inspection begins with the inspector presenting his credentials, followed by an opening conference, which is the time to ask about the anticipated scope of the inspection. If the inspection is in response to an employee complaint, the employer’s representative has a right to see a copy of the complaint, and the inspection should be limited to the alleged hazard described in the complaint. Even in the absence of a complaint, the inspection may be targeted at a particular hazard.
If counsel is not handling the inspection for the company, the designated representative should be instructed to reach an understanding with the inspector as to the areas of the facility, equipment or conditions the inspector wants to see, then limit the inspection to them. During the opening conference, the employer’s representative also should identify safety rules applicable to the areas to be inspected, and ensure that everyone, including the inspector, complies and uses personal protective equipment where required.
In addition, in-house counsel should familiarize the employer’s representative with any areas of the facility or records that may contain confidential trade secrets, which OSHA regulations protect from disclosure. Finally, the company representative should be prepared to discuss records requests. The company must produce to the inspector certain records, including the required OSHA logs and incident reports. An employer may object to production of other records, and it is important to identify which records the inspector wants and the reason for the requests.
• The walk-around inspection: Following the opening conference, the inspector will conduct a walk-around inspection. In-house counsel should tell the company representative to accompany the inspector at all times. An employee representative has the right to do so, as well.
The company representative should carefully document all inspection activities, in addition to photographing or videotaping anything the inspector photographs or videotapes. He or she should make every effort to keep the inspection on track and limited to the areas discussed during the opening conference (or identified in any warrant).
If possible, the company representative should try to correct any unsafe conditions or violations identified during the walk-around inspection. Prompt corrective actions can demonstrate the company’s good faith and limit the amount of the proposed penalty. The company representative should have authority to implement routine corrective actions but should refer more complex alleged violations to counsel and senior management.
• Interviews: During the walk-around inspection, or afterward, the inspector may identify employees to interview. In-house counsel should let the employer representative know that he generally cannot demand to attend interviews with nonsupervisory employees. However, he can tell employees that they may request that a management representative be present. Employees also have the right to decide whether or not to speak to an OSHA inspector, and can decline to allow the interview to be recorded or videotaped.
In-house counsel should conduct a voluntary debriefing of employees the inspector interviews to ascertain the nature of the questions asked and the employees’ responses. If the legal department is not on site, this can happen over the telephone. During any debriefing, it is important to assure employees that they will not face reprisals of any kind for providing information to OSHA.
If the inspector wants to interview management or supervisory employees, then the company is entitled to have a management representative present and should exercise this prerogative. Whoever attends in this role, whether a management representative or an in-house attorney, should ensure that the inspector clearly states questions, frames those questions in an understandable way and receives accurate answers. Management and supervisory employees have the same rights as other employees to decline to allow interviews to be recorded or videotaped.
• The closing conference: The final step in the on-site inspection process is the closing conference. The inspector may discuss violations observed during the walk-around or identified during employee interviews. The inspector may not identify the classification of any contemplated citations or the likely amount of proposed penalties. However, the inspector will discuss necessary corrective actions. The company representative should avoid admitting violations but can identify the steps the inspector believes are necessary to correct any alleged violations.
OSHA has six months from the date the inspection commences to issue citations. However, an employer only has 15 days from the receipt of a citation to file a notice of contest or to reach an informal settlement with the local OSHA area director. By following the simple steps outlined counsel can position a company to negotiate a favorable settlement or, if necessary, successfully contest a citation.