This is Part II of a four-part series; catch up on Part I here.
Standing in front of a room of about 40 safety professionals, Rick Kaletsky, a safety consultant and former Compliance Safety and Health Officer (CSHO) for OSHA, asked by a show of hands how many had a plan in place for an OSHA inspection; not a single hand was raised.
When he asked why not, most were confident that the safety procedures they had put in place were sufficient; they had done their due diligence and there was no reason to worry about or make preparations for an inspection that was never going to happen.
“True,” commented Kaletsky, “you may not ever receive an inspection from OSHA, but then again, you might. In fact, look around this room. Chances are, one of you is going to have that knock on the door, and you better be ready.”
The next day, one of the safety professionals who had listened to Kaletsky’s presentation approached him at breakfast.
“You’re not going to believe this, but after I left your presentation I had a voicemail waiting for me – OSHA knocked on our door yesterday.”
The bad news is that hoping you won’t be selected for inspection is the business equivalent of an ostrich burying its head in the sand; the good news is that there are simple steps that can be taken to prepare your company for an OSHA inspection, minimizing your chances of citations and major fines.
In this report, Kaletsky, a 47-year veteran of the safety industry who was employed by USDOL/OSHA as a Compliance Officer and Assistant Area Director for 20 years, takes us through the dos and don’ts of OSHA inspections and provides his tips on how best to prepare your company.
What Triggers an Inspection
When OSHA comes knocking, it is very rarely random. There are some businesses that will be on an inspection list simply because of their industry (foundries, companies with mechanical power presses, etc.) or perhaps because of a long history of complaints. But for most businesses, an inspection is typically triggered by one of the following:
- A complaint from an employee;
- A recent workplace incident that caused severe injury or death;
- A referral from a professional such as a firefighter or doctor about a workplace incident, injury, or exposure.
Inspections are done on a priority basis, which means a hazard that is likely to result in death (or already has) will be addressed by OSHA before a noise complaint. However, you won’t know about an inspection until OSHA is knocking on your door – in fact it’s illegal for OSHA to provide advance warning of an inspection except under certain circumstances.
Under law, all employers must report to OSHA:
- The death of any worker from a work-related incident within eight hours of learning about it;
- All work-related in-patient hospitalizations, amputations, and losses of an eye within 24 hours.
If any of the above have occurred recently at your workplace, expect an imminent visit from OSHA.
The Initial Knock – Gaining Entry
When we talk about OSHA knocking on your door, Kaletsky says that’s pretty much exactly what happens. A compliance officer will show up at your place of business and explain the nature of the visit (if it’s in relation to a complaint, you will be provided with a sanitized copy of that complaint) and ask to be allowed to inspect the premises.
The first question most business owners and safety managers have is – do I have to let them in?
The short answer is yes. The long answer is that you can request a warrant before access is granted, but this is not a wise strategy. Except for a very limited number of cases, OSHA will almost always be granted a warrant; however, the process of obtaining a warrant is tedious and time-consuming. A compliance officer forced to go through this process will not likely be in a mood to be lenient or conciliatory during the eventual inspection.
While demanding a warrant is not a prudent move, asking for credentials most certainly is; Kaletsky recommends asking for – and checking – credentials if (or when) an OSHA compliance officer knocks on your door.
“This is not only a practice that is cordial, but also expected by the compliance officer,” explains Kaletsky.
Asking for credentials is common practice and the OSHA safety specialist will gladly provide them to you. Kaletsky recommends going beyond examining the credentials and verifying that the compliance officer is indeed who he or she says. The compliance officer won’t allow you to take their badge out of sight, but you can take a picture and go into a private room or office. Look up the number for OSHA on your own – don’t rely on a number provided by the compliance officer. Call and verify with OSHA that the person in your lobby is indeed their compliance officer and that they have arrived to perform an inspection. Imposters are rare, but it’s better to be safe than sorry.
The Opening Conference
The opening conference is simply a meeting designed for the compliance officer to introduce the reason for the inspection. In the case of a complaint, the complaint will be sanitized – meaning that identifiers of the complainant are removed. While it may be obvious to you who submitted the complaint, keep in mind that it is against the law to reprimand or dismiss an employee for filing a complaint with OSHA.
The first thing you’ll want to do to prepare for an OSHA inspection is develop a hierarchy of contacts plan. Select two or more employees that you trust who will act as point of contact should OSHA come knocking. The reason you will want two or more is in case OSHA arrives on a day that your primary point of contact isn’t in the office. The inspection will go on whether your key person is present or not, so it’s prudent to have several employees trained in how to act and respond to an OSHA compliance officer. If you are a union shop, be certain that the union rep is invited to the conference in addition to your selected employee representatives.
Make sure the employees you select are familiar with the machines and know how to run them, not someone who simply presents well. Once the inspection is in full swing it will not only look unprofessional but also be incredibly distracting to have to stop the entire process and locate an employee who knows how to operate a machine the compliance officer wishes to inspect. Also, absent proper training, this employee may inadvertently give information to the compliance officer that casts the company in a poor light such as, “I’ve been telling management for months to get this fixed!”. Once there is evidence that management was aware of a hazard, it becomes a much more serious offense and can result in six-figure fines (more on this in the next report).
You can choose the area where the opening conference will occur, so make sure to pick a spot that is comfortable and where everyone can have a seat. Ensure your demeanor is friendly and positive, not aggressive or negative. The OSHA compliance officer will simply be relaying to you what is in the complaint – no citations have been issued at this point. There’s no need to get offended or make off-hand remarks about the person you suspect may have filed the complaint.
Answer any questions you are asked honestly and to the best of your ability, but recognize the difference between truth and candor. Don’t offer up more information than is required; you could inadvertently admit to prior knowledge of hazards, leading to much higher fines, or alert the safety specialist to other possible hazards outside what is in the complaint. For example, if the compliance officer asks whether you know that a guard is required on a particular piece of equipment, responding “oh yes, I know, I’ve been meaning to order a new guard for months now, same as the other machine in the back room,” isn’t going to help your case. OSHA now knows you knowingly allowed a machine to be used without a proper guard and that there’s a similar problem on a machine they weren’t previously aware of.
To ensure you and your employees are prepared should an OSHA compliance officer come knocking on your door, follow these steps for successfully navigating entry and the opening conference:
- Ask the compliance officer for credentials and verify those credentials but never ask for a warrant unless you have reason to believe one will not be granted.
- Select two or more employee delegates that are familiar with the equipment on your premises and can represent your company in a positive light.
- Find a comfortable, private area with plenty of seating to hold the conference.
- Listen attentively to what the compliance officer says – don’t argue or make comments that could be construed as negative.
- Answer any questions honestly but do not provide more information than necessary.
Check back next week for Part III of the series, Preparing for the Walkaround and Building a Safety Culture
For more great information on OSHA and inspections, check out these other informative blogs:
Click here to purchase Rick Kaletsky’s comprehensive book on OSHA inspections.
This blog does not constitute legal advice. To determine your rights and obligations under the Occupational Safety and Health Act and its regulations, please contact your legal counsel or refer to the legislation.