What to Expect From an OSHA Inspection
The Occupational Safety and Health Administration (OSHA) is an agency of the Department of Labor (DOL) and it conducts tens of thousands of workplace inspections each year. Given that OSHA or its state agencies have jurisdiction over 8 million job sites, the chances of your business being inspected are slim. Still, it’s best to be prepared for an OSHA inspection and to know what to expect if a compliance safety and health officer (CSHO) knocks on your door.
Why would OSHA want to inspect your business?
OSHA focuses its inspection resources on the country’s most hazardous workplaces, based on the following order of priority:
- Imminent danger situations. Hazards that could cause death or serious physical harm receive top priority. CSHOs will ask employers to remove employees from the hazardous area and correct the identified hazards or they will shut down the worksite until the imminent danger hazard is abated.
- Severe injuries and illnesses or death. Reports of work-related fatalities and serious injuries and illnesses are also a top priority.
- Worker complaints. Allegations of hazards or violations receive a high priority. Employees may request anonymity when they file complaints.
- Referrals of hazards. Referrals from other federal, state or local agencies, individuals, organizations or the media receive consideration for inspection.
- Targeted inspections. Inspections aimed at specific high-hazard industries or individual workplaces that have experienced high rates of injuries and illnesses also receive priority.
- Follow-up inspections. Checks for abatement of violations cited during previous inspections are also conducted by OSHA in certain circumstances.
Not all complaints and referrals result in an on-site inspection. For lower-priority hazards, OSHA may call the employer to discuss safety and health concerns. OSHA will follow up with written details and the employer must report back within five working days with the corrective actions it has taken or plans to take. If the response is adequate OSHA may decide to skip an on-site inspection.
Preparation for an on-site inspection
In most cases, you won’t be given advance notice of an on-site inspection. The rare exception is if there is an imminent danger in your workplace and OSHA wants you to correct the situation as quickly as possible.
Because there is no advance notice, it’s best to have an OSHA inspection preparation plan rehearsed in advance. Your plan should include:
- Who will greet the inspector
- Who should be present for the opening conference
- Who is in charge of gathering requested documents
- Who will accompany the inspector during the inspection
- Who will make prompt corrections of violations that can be resolved immediately
- How you will record the inspection (e.g., photos, video)
- How you will conduct simultaneous sampling if OSHA takes samples
If a union represents your employees, you should identify a union representative to be part of the inspection process.
The inspector will take notes and may take photos or make video recordings of your workplace. These will not be shared with you. But you are allowed to take your own notes, photos and videos and to ask questions, so designate someone to do that.
CSHOs conduct the majority of inspections. CSHOs who specialize in physical hazards or procedural problems are known as safety inspectors. CSHOs who specialize in occupational health hazards such as chemical vapors, asbestos, respirator issues and noise are known as industrial hygienists. Industrial hygienists may take noise or air samples. If at all possible, you should take your own samples at the same time for your records.
When the OSHA inspector arrives
CSHOs are required to show identification when they arrive. You should check the compliance officer’s credentials, which include a photo and a serial number. There have been cases of scammers impersonating OSHA inspectors and requesting payment of fines, something real compliance officers never do. So if you have any doubts about the CSHO’s credentials, contact your local OSHA office or the DOL’s Office of the Inspector General to verify an officer’s identity.
There are differences of opinion over whether it is ever a good idea to demand a warrant before consenting to an inspection. While requesting one will buy you some extra time, OSHA may view it as a reason for enhanced scrutiny and bring a team of experienced compliance officers when they return with a warrant.
Most experts say that it is reasonable to ask the inspector to wait while the appropriate manager is notified and can arrive in person to greet the inspector. This will give you time to put your OSHA inspection preparation plan into action.
It’s best to avoid a confrontational attitude. Employers who cooperate during an inspection and demonstrate good faith are more likely to be given some leeway by the inspector.
OSHA inspections follow a set format consisting of the:
- opening conference
- walk-around inspection
- closing conference
Be prepared for all three phases.
During the opening conference, the CSHO is required to outline the reason for the inspection and its scope. If a complaint has been filed, the inspector should present it (with the complainant’s personal information omitted). It’s best not to comment about the complaint or who may have made it since the law protects employees who file OSHA complaints (whistleblower protections).
Employee representative(s) such as your union representative should be present at the opening conference.
Know your rights and responsibilities
Before the inspection begins, the compliance officer should discuss each party’s rights and responsibilities. These include:
- The right to representation. As noted, a company representative and an employee representative may accompany the inspector. The inspector also has the right to privately interview employees about safety and health conditions on the job site.
- The right to participation. By law, employees are allowed to participate in an inspection and must be paid for their time. Employers cannot retaliate against an employee who talks to an inspector or files a complaint.
- The right to confidentiality. Inspectors are required to keep information such as blueprints, production processes and trade secrets confidential. Notes, photos and videos are kept confidential, as are interviews with employees.
Following the opening conference, the compliance officer and the representatives will walk through the areas of the workplace covered by the inspection, checking for hazards that could lead to employee injury or illness.
The compliance officer will also review your injury and illness records and prevention programs, and check whether the official OSHA poster is properly displayed. It is important that you have all of the necessary records and documents available. Such items might include, but aren’t limited to:
- Form 300 (Log of Work-Related Injuries and Illnesses), Form 301 (Injury and Illness Incident Report) and Form 300A (Summary of Work-Related Injuries and Illnesses) — going back five years
- Lockout/tagout training and procedure audits
- Hazard communication training, including how to read a safety data sheet (SDS)
- A current list of chemicals used at the facility (chemical inventory sheet)
- Current chemical SDSs stored in a place where all employees can access them
- Annual respirator fit testing and training
- Electrical safe work procedures and training
- Personal protective equipment training
- Occupational noise exposure training
- Bloodborne pathogen training
- A written injury and illness prevention program for businesses with 11 or more employees
If you don’t have copies of the requested documents, the CSHO may agree to let you mail them to the local OSHA office. Make copies of all documents requested for your own files.
Some violations can be corrected immediately
During the walk-around, the compliance officer may point out some apparent violations that can be corrected immediately. While the law requires that these hazards still be cited, prompt correction is a sign of good faith on your part and may result in reduced penalties. You also can ask questions about how best to correct these hazards.
The CSHO may ask to interview individual employees. You should select a place where the officer can conduct these brief interviews. Employees can elect to have a supervisor or union representative present during the interview.
You don’t have to allow access to areas of your facility that aren’t covered by the inspection, so resist providing a wide-ranging plant tour. Any violations an inspector sees in “plain view,” even if they are outside the prescribed inspection area, can be cited.
Most inspections are completed in one day, but some may require multiple visits, depending on the size of the facility and the number of hazards identified.
After the walk-around, the compliance officer holds a closing conference with the employer and the employee representatives to go over the findings. The officer will note any violations that may result in a citation or fine; discuss potential corrective actions and reasonable timelines; and describe possible courses of action you may take, such as an informal conference with OSHA or contesting citations and proposed penalties. The compliance officer also discusses consultation services and employee rights.
The conference might not occur immediately after the walk-around. In fact, it may take place over the phone one to six weeks after the inspection. If an industrial hygienist has taken samples, there may be a separate closing conference after the test results have been received. Regardless of when or how the conference is conducted, be attentive to what the inspector says, ask questions and take notes.
The closing conference is a good time to highlight your safety programs and talk about your commitment to health and safety. OSHA takes this into account when establishing penalty amounts. It is also a good time to report any abatement already made or soon-to-be made to hazards identified during the inspection.
After the conference
OSHA must issue a citation and proposed penalty within six months if a violation has been determined. Citations describe OSHA requirements allegedly violated, list any proposed penalties and give a deadline for correcting the hazards.
OSHA has a policy of reducing penalties for small employers and those acting in good faith. OSHA may also reduce the proposed penalty based on the gravity of the violation. However, no good faith adjustment will be made for violations determined by OSHA to be willful or repeat violations.
Employers who have been cited must immediately notify their employees by posting the citation notice at or near each place where a violation occurred for three working days or until all violations are abated (whichever is longer). You must comply with this notice requirement, even if you decide to contest the citation.
If you agree with the citation and penalties, you must abate all violations by the deadline and return a special form stating that the hazards have been abated.
You have the option to request an extension to abate the hazards. You also have 15 working days after receipt of a citation to formally contest it in a written notice to the OSHA area director.
Contact your lawyer immediately after an inspection to discuss the situation and whether to formally contest the citation. Many businesses contest any safety audit regardless of violation status.
During that 15-day period — and before you decide to contest your citation — you may request an informal conference with the area director to discuss your citation, penalties, abatement dates or any other information pertinent to your inspection. This is an opportunity to work out a settlement agreement to resolve the matter. OSHA states that its primary goal is to correct hazards and maintain compliance, rather than issue citations or collect penalties.
Additional OSHA resources
OSHA offers several programs to help employers improve workplace safety. Among these resources are:
- Access to OSHA compliance assistance specialists
- No-cost, on-site safety and health consultation services for small businesses
- Cooperative programs
- Strategic partnerships and alliances
- Voluntary Protection Programs (VPPs)
- Occupational safety and health training courses
- An Outreach Training Program
- Educational materials
The role of insurance
Working with your insurance professional, you may be able to better manage risk in the workplace. Talk to your agent or broker about the risk mitigation tools they offer to help with controlling risk exposure. Your broker or agent is a good resource for loss-control and risk-mitigation program assistance.
Many workplace injuries and illnesses fall under either workers’ compensation or general liability insurance, depending on who is harmed. Whenever a worker is injured on the job or made ill, workers’ compensation insurance is generally triggered. Whenever a visitor or client is injured or made ill while on the premises, commercial general liability insurance is generally triggered.
None of these policies will protect you, however, from the cost of repairing an OSHA violation, or the fines, penalties, press or legal fees associated with a negative action against your business. Taking preventive measures is always the best way to protect your workers, guests and company.