An impending or surprise OSHA visit to your jobsite can be an anxiety inducing and potentially costly experience if you aren’t prepared. In this post, we will discuss what you can expect if you’re audited, your rights as an employer, and how to communicate with your employees about and during the inspection.
Before OSHA can conduct a site inspection, they must have probable cause. When an inspector arrives on site and announces the intent investigate, you have legal right to ask for credentials and ask why the inspection is taking place before you agree to allow it to move forward.
Most times, the inspector will inform you that they are there for one of three reasons:
- An employee submitted a written complaint alleging a hazard
- An accident has occurred (Keep in mind, it is mandatory to notify OSHA within eight hours of a fatal accident, or a single incident in which three or more employees have sustained injuries that require medical treatment)
- OSHA selected your company for a programmed audit based on a specific workplace hazard (e.g., asbestos, forklifts, etc.)
In the event that the inspection relates to an employee complaint, you are entitled to receive a copy of the written complaint (with employee information redacted). Once you receive the information, it’s important to immediately inform members of your senior leadership team, as well as your legal team if there has been an accident or significant property damage. Work with them to determine whether you will allow the inspection. If you decide to proceed, define the scope of the site inspection and select the employees who will accompany the inspector.
You should inform the inspector that you’re communicating with your management teams and will respond in a timely fashion as to whether you will voluntarily allow the inspection (i.e., an inspection not requiring a search warrant). The inspector is required to wait for a “reasonable time period” to allow this communication to take place prior to beginning the inspection.
Evaluating Probable Cause for an Inspection
When you’re discussing the inspection with your senior management team, you need to determine probable cause. Following are some questions to take into consideration.
Regarding an employee complaint:
- Is the complaint valid?
- Does the complaint identify the correct jobsite, company and/or equipment?
- Does the complaint identify a hazard that is known to exist at the worksite?
Regarding an accident:
- Did an accident involving the employer actually occur?
- Is the accident scene still accessible or have conditions changed? (Important: If the accident involved a fatality, the scene cannot be altered until OSHA conducts its inspection and releases the site. The only exceptions are to shut down equipment that could be hazardous to employees; to respond to a hazardous materials situation, such as a spill; or to remove human remains).
For a programmed inspection:
- Does your company fall within the criteria for the inspection (i.e., does that particular hazard exist in the workplace)?
- Can your company otherwise challenge its selection under the criteria (e.g., If your statistical accident data is lower than the criteria to authorize OSHA to conduct a programmed inspection, you should be exempted from the inspection)?
What Happens During an OSHA Inspection?
If you decide to voluntarily allow an inspection, you’ll need to determine the scope of the inspection; that is, decide where the inspector will be permitted to go and what operations they will be allowed to view. Keep in mind, granting the inspector more access than is necessary to evaluate the employee complaint, accident site, or hazards referenced in a programmed inspection, subjects your company to citations for anything that the inspector observes. Any violations that are in plain view during the walk around are subject to citation.
What Are My Company’s Rights?
As an employer, you have the right to inform your employees of their rights during the inspection. You also have the right to participate in non-confidential interviews between employees and the inspector. Additionally, you have the right to pull the plug on disruptive or confrontational interviews that interfere with company productivity. In this case, consult legal counsel about terminating the inspection.
What Are My Employees’ Rights?
When faced with an OSHA inspection, it’s essential that you inform your employees of their rights. You can use this list as a communication guideline:
- An OSHA inspector might want to speak with you about an accident, complaint, or general workplace safety issues.
- You have the right decline the interview.
- You can request a private interview, or your manager can be present.
- You have the right to consult with the company’s legal counsel.
- You can end the interview at any time.
Be Prepared for an Inspection
Remember that when OSHA requests to conduct an inspection, they must have probable cause to do so and must provide you with the reason for the inspection. While most employers definitely don’t welcome an unexpected OSHA inspection, understanding your rights and what to expect can make the process go more smoothly. And, conducting a safety audit of your jobsite or workplace before OSHA shows up on your doorstep can help keep you out of trouble in the event of a site inspection.