It’s a typical Monday morning commute into the office.
Your Yeti cup is filled to the brim with hot coffee, and your mind is immersed into a podcast on positive leadership as you patiently wait in traffic.
When suddenly, the office calls…
“Already? It’s only 7:30am. Why are they calling so early. What could possibly be wrong this early.”
You answer the phone to find your Executive Assistant in a “fake calm” (which means, panicked) tone as she gently shares with you that a compliance officer from OSHA is sitting in your conference room awaiting your arrival.
Immediately, your mind starts racing.
“Why in the world is OSHA visiting?”
“Did an employee report me?”
“Did I miss a compliance deadline?”
Now, let’s be honest. Your company is likely one of the safest – which is why you even landed on this article.
Because you’re not taking the risk of being unprepared if OSHA were to show up at your facility.
In other words, you’re ahead of the game.
But before we get into what you can expect from an OSHA inspection, let’s step back and review what OSHA is and why it’s here in the first place.
What is OSHA?
The Occupational Safety and Health Act, also known as the OSH Act, requires companies like yours to offer employees a safe and healthy, hazard-free work environment.
The Occupational Safety and Health Administration, also known as OSHA, is responsible for creating workplace safety standards that enforce compliance of the OSH Act.
They achieve this by conducting inspections, gathering evidence and penalizing companies that are not in compliance with OSHA’s rules and regulations.
What Are OSHA Penalties?
OSHA penalties are civil penalties that could result in fines. And dependent upon how serious the violation is, OSHA has the authority to refer certain violations to the U.S. Department of Justice for criminal prosecution.
OSHA penalties are determined based upon four factors:
- The gravity of the violation
- The size of your company
- Good faith efforts you make to comply with OSHA
- Your compliance history
Is Your Company Subject To OSHA?
Most private companies in the US are subject to the OSH Act, either directly or through an OSHA-approved state program. State programs must be approved by OSHA, and must at least be as effective or more effective than OSHA.
In general, public employees (state and local government) are not typically subject to the OSH Act, but may be covered through an approved state program.
What Is An OSHA Inspection?
An OSHA inspections have one purpose – to ensure companies are compliant with OSHA rules and regulations, which means they put an emphasis on the health and safety of their employees.
OSHA inspections are conducted by compliance safety and health officers, who also have authority to:
- Assign specialists to accompany and assist them during the inspection
- Issue citations for noncompliance
- Obtain court-issued inspection warrants
- Issue administrative subpoenas to acquire evidence related to an OSHA inspection or investigation
If a compliance officer shows up at your facility to conduct an OSHA inspection, it’s important to note that they are responsible for obeying your company’s safety and health rules.
So, if you require your employees to wear protective equipment and necessary respirators, your compliance officer should do the same. If you require all visitors to obtain a visitor pass and sign visitor registers, your compliance officer should do the same.
How long is an OSHA inspection?
OSHA inspections can last anywhere from a few hours to several days, weeks or even months, and they can either be programmed or unprogrammed.
Unprogrammed OSHA inspections tend to take precedence over programmed inspections because an unprogrammed inspection typically is triggered by catastrophic reports such as:
- Imminent danger
- Fatality or catastrophe
- Compliant or referral
OSHA can also conduct an unprogrammed follow-up inspection to determine whether any of your company’s previously cited violations have been addressed.
Programmed inspections typically target high-risk industries, occupations or health substances, and are typically scheduled based on employer incident rates, citation history and employee exposure to harmful substances.
But regardless of the type of inspection that occurs at your facility, the fear rests in not knowing when it’s coming.
Will you be notified prior to an OSHA inspection?
The OSH Act has a “no-notice” requirement in that they prohibit providing companies advance notice of an OSHA inspection.
In fact, an OSHA compliance officer could be subject to a fine of up to $1,000, go to jail for six months, or both for simply informing a company of an upcoming inspection.
Now, there are a few exceptions to the no-notice rule only in situations where advance notice would:
- Allow your company to correct an apparent imminent danger situation as quickly as possible
- Facilitate an inspection outside of a site’s regular hours of operation
- Ensure the presence of employer/employee representatives or other appropriate personnel during the inspection
- Enhance the probability of an effective and thorough inspection
If, and only if, an exception is approved, OSHA will not provide more than 24 hours of advanced notice.
What is the Scope of the OSHA Inspection?
The scope of an OSHA inspection can be comprehensive or partial.
A comprehensive inspection is just as the term implies, a complete and thorough inspection of the company. During this type of inspection the compliance officer will evaluate all potentially hazardous areas and conduct a full audit on your company.
A partial inspection is typically limited to certain potential hazardous areas, operations, conditions or practices at the company’s establishment.
But a partial inspection could result in a full, comprehensive inspection if the compliance officer deems it is in the best interest of the employees’ safety.
Knock, Knock… It’s OSHA!
Here’s four tips and reminders to keep in mind if a compliance officer arrives to inspect your facility:
- Check the inspector’s credentials
- Instruct your team on how to receive the inspector
- Inform senior management or legal counsel as appropriate
- Determine whether you will demand a warrant or give consent
Before acknowledging this is an OSHA visit, ask for the compliance officer’s credentials. If you feel uncertain, call your local OSHA office to confirm a compliance officer’s authority to conduct the inspection.
A compliance officer has the right to enter your company if he/she has obtained your consent or has a warrant ordering you to admit him/her into your facility.
In either case, you cannot unreasonably delay the inspection to await for the arrival of the employer representative.
Know Your Rights.
When a compliance officer shows up at your door to conduct an inspection, you have 3 options:
- You can consent to admit them into your facility to perform a worksite inspection.
- You can provide partial consent and allow the compliance officer to only visit certain areas of your facility.
- You can refuse and request for the compliance officer to return with a court-ordered warrant.
Keep in mind that, with partial consent or refusal of consent, your compliance officer will make note report it to OSHA, giving OSHA the right to take further action, including any legal process as it may see fit to obtain access to restricted areas.
There’s also a few exceptions to refusal of consent, though.
A compliance officer does not need to obtain your consent or a warrant to access your premise if he/she establishes:
- The existence of a plain view hazard
- That the worksite is an open field or construction site
- The existence of exigent circumstances
What Happens if OSHA Shows Up With a Warrant?
It happens more often than you think.
With a court-issued warrant, compliance officers are not required to ask for your consent. In other words, the warrant allows the compliance officer access to your facilities to conduct the inspection with or without your consent.
The 3 Stages of an OSHA Inspection
Stage 1: OSHA’s Opening Conference
In general, you can expect your compliance officer to begin with a brief opening conference to where both you and your employee representatives participate. The compliance officer may hold separate opening conferences if you object to a joint conference.
During the opening conference, a compliance officer will likely discuss with you the following things:
- The purpose of the inspection
- Any complaints filed against you, if applicable
- The officers’ right to document evidence (handwritten notes, photos, videos, audio, etc.)
- Advantages of immediate abatement and quick fixes
- Plan for physical inspection of the worksite
- Audit of employee injury and illness records
- Referring violations not enforced by OSHA to appropriate agencies
- Employer and employee rights during the inspection
- Plans for conducting a closing conference
Here’s a few tips and reminders to keep in mind during OSHA’s opening conference:
- Determine the purpose and scope of the inspection.
- Be prepared to prove that you are in compliance with OSHA.
- If a complaint has been made, request a copy for your records.
- Set the ground rules for the inspection.
- Cooperate and be responsive, but DO NOT volunteer information.
If applicable, at the opening conference you may need to present your written certification of hazard assessment and create a list of on-site chemicals (with their respective maximum intended inventory).
Compliance officers will use these documents to determine the hazards that may be present at your facility and set initial benchmarks and expectations for the physical inspection.
It will be up to the discretion of the compliance officer to set the agenda for the opening conference.
If the opening conference is shortened, your compliance officer should:
- Present his/her credentials
- State the purpose of his/her visit
- Explain employee and employer rights
- Request participation of employee / employer representatives
All other elements of the opening conference would then be discussed during the closing conference.
Stage 2: The Walk-Around
The walk-around is the most important part of the OSHA inspection.
As an employer or employee representative, you have the right (and are encouraged to) accompany the compliance officer during the walk-around.
Expect your compliance officer to take notes and document all facts pertinent to violations of the OSH Act. They may also offer limited assistance on how you can reduce and eliminate any workplace hazards.
In the event that your compliance officer comes across a trade secret, they have specific procedures around the confidentiality of documenting any evidence involving trade secrets.
Compliance officers that violate these requirements are subject to criminal sanctions and removal of office.
Here’s a few tips and reminders to keep in mind during Stage 2: The Walk-Around of the OSHA Inspection
- Inspections may last several days so plan accordingly.
- Require inspectors to comply with establishment safety rules.
- Take note of what the inspector is documenting.
- DO NOT stage events or accidents.
- DO NOT destroy or tamper with evidence.
Stage 3: Closing Conference
Unless you prefer otherwise, the closing conference is typically a joint conference with the compliance officer, you as the employer and the employee representatives. It can either be conducted in person or over the phone and regardless of whether or not you wish to participate in the closing conference, the inspection and citation process will proceed.
The compliance officer will document all materials provided to you during the closing conference, as well as any discussions that took place.
Expect to discuss the following items in your closing conference:
- Your rights and responsibilities as an employer
- The strengths and weaknesses of your company’s safety and health system
- The existence of any apparent violations and other issues found during inspection
- Any plans for subsequent conferences, meetings and discussions
The closing conference is certainly not the time to debate or argue with the compliance officer about possible citations.
During this time, try to understand the inspector’s findings and any possible consequences you may face.
Discuss abatements completed during the inspection and any plans to correct the issues in the near future.
Lastly, don’t forget to request copies of all recorded materials and sample analysis summaries for your records. While the compliance officer is present (via in person closing conference or over the phone) take the time to discuss your right (and the process you should follow) to appeal any possible citations.
While the anticipation of an OSHA inspection can be nerve-wracking – let’s remember OSHA’s sole purpose, and the reason behind these OSHA inspections.
The health and safety of our workforce is paramount. Our employees deserve a safe and healthy work environment, and OSHA sets out to ensure that.
Stay abreast on OSHA’s latest rules and regulations and maintain OSHA compliance. It’s not only in the best interest of your employees, but also in the best interest of your company and America’s workforce.
My name is Dani Kimble and I work here at The O’Neill Group, a risk management and insurance firm in Northeast Ohio.
We have a number of tools and resources to help your company stay in compliance with OSHA. To learn more, call me at (330) 334-1561 or email firstname.lastname@example.org.
This article was adapted from Zywave. This is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel or an insurance professional for appropriate advice.