By Jim Cooke, CSP, CBI
Safety on the job site is important and is your responsibility. Here are some guidelines that can help you, your employees and your job sites be prepared for an inspection.
I am often asked, “What do we do if OSHA inspects our job site?” by both residential and commercial contractors. My response is always, “Cooperate fully.” I know it’s hard to believe, but there are folks and companies out there who have never had any
experience with OSHA or OSHA-compliance inspections.
That being said, there are often misconceptions about this inspection process. Some would have you believe that you have no rights during an OSHA inspection. Others would tell you that OSHA compliance inspectors require a warrant to inspect your job site. Both of these are misconceptions regarding the inspection process.
OSHA has the authority to conduct workplace or jobsite inspections; however, your company also has rights. Unless owners, managers and employees are aware of these rights, they could be led to believe they must have an open-door policy. Knowledge of your rights during an OSHA inspection can help you make educated decisions regarding what you will and will not permit during an OSHA inspection.
OSHA inspectors are not required to inform employers of their rights during an OSHA inspection. This includes the right to refuse entry unless the compliance officer is authorized by a warrant. The compliance officer can issue citations for any alleged violations that are observed during an inspection if you let them tour your job site without a warrant. Though the option of requesting the OSHA compliance officer to obtain a warrant is your right, it may be a better idea to cooperate with the compliance officer.
The reason I say this is, first, the OSHA compliance officer is there to ensure the safety of your workplace and employees – to be sure that no one is injured and everyone returns home safely. Looking at it from the compliance officer’s perspective, if I arrive at a workplace and an employer blocks my entry and demands I obtain a warrant to perform the inspection, I have to believe the employer is trying to conceal potential safety violations. That being the case, when I do return with a warrant, I’ll be sure to bring additional assistance to ensure my safety compliance inspection of your workplace is very thorough.
Also, if you assume that you can find every single safety violation on your job site before the compliance inspector returns, you are sadly mistaken. Further, if any safety violations are found, it can be assumed that you knew of them and blatantly disregarded them. In the event of serious violations, this would make violations ‘willful,’ which could bring some seriously expensive fines and potential jail time.
Warrants
Some companies always ask for a warrant because they understand it is within their legal rights to do so. The warrant will state the specific purpose of the inspection and to what extent the inspection will proceed. In some instances, OSHA will come with a prepared warrant when it knows the company requires warrants. Remember job sites that can be viewed from a public area do not require a warrant. For example, a pipeline being installed on a public road or a roadside excavation – and many other job sites – can be entered without a warrant. Remember, the decision is yours and you have the right to seek legal counsel.
If you do request a warrant, the OSHA inspector must convince a federal judge that there is good reason (probable cause) to enter your facilities or job site. The OSHA inspector may not be able to obtain a warrant, or the warrant may restrict the extent of the inspection – the federal judge makes the final decision.
If the compliance officer presents a warrant, read it thoroughly before allowing the inspection to proceed. You may want to consult with an attorney, so call your company’s attorney if you feel the need. If you are a foreman or supervisor, call for
assistance or advice from executive management or your company’s safety director.
The decision whether or not to request a warrant should be established in your company’s procedures, and all managers should be familiar with these procedures. It is a good idea to establish an OSHA policy and procedures for your company before you have to go through an OSHA inspection. Management should also decide in advance who should take charge of an OSHA visit.
Although it is widely believed that you may never experience an OSHA inspection, your company’s name is on the OSHA list. In recent years OSHA has stepped up the amount of inspections it performs, specifically targeting the construction industry due to the number of injuries and accidents experienced in construction.
OSHA uses inspection priorities to determine if they will target a specific company on their list. If your company is selected based on one of these priorities, you may very well receive a visit from a safety and compliance officer. It may not happen today, next week or even next year; in fact it may never happen. But, if it does, be sure you understand what your rights are.
With the number of projects that are being funded by government dollars through the American Recovery and Reinvestment Act, there will be an increase in the emphasis on jobsite safety that will result in an increase in OSHA visits. It’s better to be preparedthan to be caught unexpectedly.
These are the six priorities OSHA uses to select companies for inspection:
1. Imminent Danger situations are given the highest priority. Under imminent danger there is a good chance that a hazard could result in death or serious physical harm before the hazard can be eliminated through normal enforcement procedures. If an imminent danger situation is reported or observed by a compliance officer, the compliance officer will ask the employer to voluntarily abate the hazard and to remove employees from exposure to the hazard. If the employer fails to cooperate, the compliance officer will attempt to obtain a stop-work injunction from a federal judge. If the condition was observed by the compliance officer, a photograph was probably taken to prove the need for the injunction. The court may also issue a warrant to make a general inspection of the job site to ensure that there are no other violations.
2. Fatal accidents and catastrophes resulting in the hospitalization of three or more employees are OSHA’s second priority. Accidents resulting in a fatality or catastrophic accident must be reported to OSHA within 24 hours. This includes vehicle-related accidents or other accidents that occurred off-site while the employee was working. OSHA compliance officers generally show up at the scene of an accident if they hear about it from radio, television or emergency scanner. In most cases OSHA will inspect the facilities of the companies where an employee was killed or a catastrophe has occurred.
3. Employee complaints of alleged safety violations or unsafe or unhealthy working conditions may result in an on-site inspection. Complaints are often made by disgruntled or recently fired employees. OSHA does not have to release the name of the complainant if the complainant requests confidentiality. OSHA will also keep the complainant informed of any action taken in response to the complaint. OSHA is required to provide your company with a copy of the employee complaint, without the employee’s name, at the time of the inspection. Complaints may also come from police, fire departments, local or state officials, disgruntled salesmen, competitors, relatives of former employees, doctors who have treated employees, and others. To help control the number of superfluous worksite inspections, OSHA has issued a directive to its field offices regarding complaints.
4. Program inspections are aimed at industries or occupations that have a higher than normal accident rate. All industries have a standard classification, commonly known as SIC codes, which are used by government and business to develop research and statistical information. OSHA uses SIC codes to track employee injury and illness statistics. The statistics are mainly used to identify industries with higher than average accident rates. These industries are then targeted by OSHA for inspection.
5. Special emphasis programs are occasionally implemented by OSHA to target a specific type of work, occupation or hazard. They are given high priority, and compliance officers will attempt to make as many special emphasis inspections as possible. Some of these special emphasis programs may include Silicosis, Lead and Asbestos, or Excavations.
6. Follow-up inspections are made to verify that cited violations given during a previous inspection have been abated. If an employer has failed to correct a violation, a “failure to abate” violation and daily penalties will be imposed on the employer until the violation is corrected.
When You’re Inspected
If your company has been selected for inspection, there are certain rights that you have and specific inspection procedures that you can expect.
When an OSHA compliance officer arrives at your job site, you have the right to see the officer’s credentials. Check the inspector’s credentials carefully to verify validity. Write down the person’s name and ID number, and ask which area office they represent.
A word of warning: There have recently been reports of nefarious individuals who have posed as OSHA compliance inspectors in an attempt to defraud employers. Such individuals will use fraudulent credentials to enter workplaces to steal trade secrets, see products, obtain bribes, or to check out the offices or facility before a robbery. OSHA does not work like this. Compliance officers are aware of these problems and should not object to you calling their office before permitting access to your job site or offices. So, if you feel something isn’t right, call the regional or local OSHA office and verify that the individual is indeed a compliance officer.
The next step in this procedure will be the opening conference, at which time the compliance officer is expected to explain the purpose of the visit. At this point, you must decide if you will request a warrant. You can ask them to wait until the company president, vice president or the safety director arrives to handle the inspection. At any time before, during or after the inspection, your company has the right to seek legal counsel. If you have any concerns and a red flag goes up, stop everything and seek legal advice.
Next comes the inspection tour of the job site or workplace. There are a number of procedures you should follow during an inspection tour:
Follow Company Procedures: Even if the compliance officer is extremely nice and courteous, remember that they are an OSHA compliance/enforcement officer. If you voluntarily invite the compliance officer into your job site or facilities and they observe a violation, the officer is obligated to issue a citation, which generally can be accompanied by a monetary penalty. If your company has an OSHA inspection procedure, refer to it.
Follow the OSHA Officer: If the compliance officer has a warrant or if your company invites the officer to tour the job site or facility, someone from management who is familiar with OSHA and your company’s rights under OSHA should stay with the compliance officer throughout the inspection. Generally this would be your company’s safety officer. Never allow the inspector to tour your job site or facility unaccompanied.
If the OSHA inspector has a warrant, be certain to read it and understand the scope of the inspection that is allowed by that
warrant. If you have doubts, concerns or questions, contact your legal counsel.
Watch What You Say: During the inspection, note what is said and what the compliance officer identifies as violations. Answer questions truthfully, but don’t speculate, or say nothing and seek legal counsel. Don’t volunteer information. If you do not agree with the compliance officer, say so, but don’t get into an argument about it – you will not win. If you feel that providing an explanation on how your operation works will help, then do so; but, again, be careful of what you say. What you say can and will be used against you to support the existence of a violation.
For example, if the compliance officer points out a missing rail from an elevated platform, do not blurt out that your company has never used rails on stairwells. Volunteering this type of information can result in expensive willful violations. In this type of situation, acknowledge what the compliance officer says and try and have the situation corrected before the compliance officer leaves the job site. Do not make an admission of guilt. Instead, indicate in a spirit of cooperation that you are complying with their request. However, even if the alleged hazard is corrected, the violation may still serve as a basis for a citation and notice of proposed penalty.
Take Notes and Measurements: During the inspection, the compliance officer will make observations of safety, health conditions and practices. They will also examine records, take pictures or videos, take measurements, take instrument readings, make diagrams and take notes. You should do the same. You also have the right to tape the conversation as long as you advise the compliance officer of your intent.
Take Pictures: Keep a digital or disposable camera at the job site. They can come in handy and can be used if OSHA decides to do an inspection. Use the camera to photograph anything the compliance officer photographs. Take a few shots of the same thing except from different angles. These may come in handy, specifically if the angle shot shows there is no violation. Be sure to keep track of the number of photos the compliance officer takes while on your job site, since your attorney may want this information later.
If the compliance officer takes measurements, take your own measurements. If they diagram something, make your own diagram
or make a note of it. Except for the OSHA log and summary and a few other documents that must be available for inspection, the employer has the right to refuse inspection and/or the copying of documents unless the warrant explicitly grants that authority. If in doubt, contact your legal counsel before releasing any documents for copying or review.
Establish and communicate company policy on employee interaction with the OSHA officer. The compliance officer has the right to consult with employees as long as it does not interfere with their work. The employee is not obligated to answer questions, which is one reason workers should be informed of their rights prior to an OSHA inspection. It is important that they understand that talking or not talking with a compliance officer on or off the job is their choice, and they cannot be forced to participate without a court order. However, the employer is not allowed to tell employees that they cannot participate in a discussion with a compliance officer. The choice is theirs to make, but make sure they understand their rights, including the fact that OSHA protects them from discrimination by their employer for exercising their rights. They also have the right to consult legal counsel.
The compliance officer does not have the right to give orders to an employer, employer’s representative or employees unless a warrant grants that authority, and then only to the extent that the authority has been granted in the warrant. In most situations this type of authority will not be granted. You are not obligated to operate or demonstrate operation of equipment, so use good judgment and don’t be afraid to say no to a request for demonstration.
Ultimately to what extent you exercise your rights as an employer is up to you. From personal experience, I have found it is best to cooperate fully with OSHA within reasonable expectations. If your company has a well-established and implemented safety plan,
conducts regular safety training with your contractors, and communicates and enforces your safety requirements to all employees and subcontractors, there shouldn’t be a problem.Always remember: Be sure your safety officers, managers and superintendents are up to date on current OSHA regulations, which change often. There are various resources for this information, including the OSHA website, www.osha.gov. Use these free resources.
Be safe out there.
Editor’s note: Jim Cooke is senior builder services specialist with 2-10 Home Buyers Warranty, Denver, Colo. He has over 25 years of experience in the residential and commercial construction trades throughout the U.S.