The Occupational Safety and Health
Administration (OSHA) is currently
escalating its inspection efforts. If
your company has not yet experienced an
OSHA inspection, chances are it will
sooner rather than later. While in
certain cases inspections may be random,
oftentimes an inspection can be
initiated by a disgruntled employee, or
by well-publicized accidents. It is now
a common practice for police and fire
departments to call OSHA when they are
on the scene of a job-related accident.
When OSHA appears, the employer’s
initial response will determine his or
her success in avoiding and defending
citations. OSHA’s first visit
after an accident is the most important
event in the life of the investigation.
It is a mistake to think you have
nothing to hide, and as a result, take
no action. Every business should have
procedures in place for dealing with an
inspection. With planning, employers can
manage the inspection effectively to
minimize work disruptions, present the
employer and worksite in the best light
possible, maintain positive employee
relations, and preserve sound
relationships with the government
agency. Failing to plan, however, may
result in excessive civil penalties,
significant abatement costs, criminal
prosecutions, negative media coverage,
and deteriorating employee relations.
Taking effective steps before, during,
and after a government inspection or
investigation is critical to limiting
your liability.

Remember that you are entitled to
representation in an OSHA inspection and
OSHA must give your company a reasonable
opportunity to have your safety
consultant or OSHA attorney travel to
your facility before the inspection
commences. Do not be in a hurry to let
OSHA into your facility—it is not
altogether unusual for companies to make
an OSHA Compliance Officer (C.O.) wait
as long as 2 hours for their
representation to arrive, although this
is at the outer limits of a reasonable
time frame.

When OSHA appears, you have 2
options: permit the inspection or refuse
it. If the inspection is permitted,
strict parameters need be set in order
to keep the C.O. from having the
opportunity to engage in a fishing
expedition for additional violations.
The choice to grant access should be
based on the facts and circumstances
surrounding the citation, and the
working environment at time of
inspection. Generally, however, if the
C.O. appears with a proper complaint, he
or she should be permitted to inspect
the premises—but only for the item
identified in the complaint. The
employer’s limitations on the
inspection should be stated to the C.O.,
and those limitations should be strictly
followed. Remember, OSHA is empowered to
expand the inspection scope and issue
citations for other violations that may
be in plain sight as the C.O. moves
between the entrance to the work place
and the area of the
inspection—anything they can see
is fair game. To mitigate potential
issues, it is not unusual for an
employer to have the C.O. walk outside
or around the facility to enter a back
or side door immediately adjacent to the
area of inspection.

An employer has the right to deny
access to OSHA inspectors until a search
warrant is obtained, and there are
benefits to this approach. A warrant
must identify the scope of the
inspection, and the time limitations for
performing the inspection, and it gives
the employer time to properly prepare
the facilities. Requesting a warrant is
advised when there are numerous items
listed on the complaint, or a
“wall-to-wall” inspection is
intended. While it may seem risky to
“annoy” a C.O. by requesting
a warrant, it does not mean he or she
will be overly zealous about an
inspection.

Well before OSHA appears, you should
establish a protocol for an inspection
and designate a team to interact with
OSHA—only these team members who
are trained in the proper protocol
should interact with the OSHA
investigators. Within this team, you
should designate one individual to
control and monitor the entire process.
This person should prepare to cooperate
with OSHA inspectors as legally
required, but also take care not to
divulge unnecessary information.

Abide by the following rules and
avoid being excessively cooperative or
overly communicative; a high level of
cooperation will not mitigate your
exposure to liability, and may
complicate or prolong the investigation.

• Designate one
  safety-knowledgeable manager to
  interface with
  OSHA during the current inspection and
  in any future visits.
• Consider
  whether to immediately employ an
  experienced safety consultant or OSHA
  attorney to handle the initial
  inspection and any future inspections to
  minimize your exposure. You or an
  employee may accidentally say or do
  something that might harm your business.
  OSHA investigators must
  wait—within reason—until
  your representative arrives, so do not
  feel pressure to immediately allow them
  to start an inspection.
• Review
  the C.O.’s credentials and obtain
  his or her full name and office address.
  
• Determine if the inspection
  is random or if it has been caused by a
  complaint or accident.
• Inquire
  as to the scope of the inspection
  (specific piece of equipment, area, or
  wall-to-wall), get a copy of the
  complaint at the outset, and confine the
  inspection to the items in the
  complaint.
• If the
  C.O. is planning a wall-to-wall
  inspection, consider requiring a search
  warrant.
• If it is
  a narrow inspection, reach an agreement
  as to the approach and scope of the
  inspection.
• Walk
  with the C.O. through the entire
  inspection.
• Try to
  postpone employee interviews until you
  have a thorough appreciation of what
  occurred, who was involved, what OSHA
  Standards are applicable, and whether
  your company was in compliance at the
  time of the accident. Your
  representative is entitled to brief
  employees in anticipation of their
  interviews, and this is well worth the
  time and effort.
• If the
  C.O. asks what happened, do not guess,
  even if you think you know.
• Take
  pictures of anything OSHA takes pictures
  of, and make sure they are from the same
  angle and at the same time.
• Do not
  provide any unsolicited information, and
  do not permit anyone else to do so.
  
• Do not
  provide documentation to OSHA until you
  and your safety experts have thoroughly
  reviewed the
  documentation—consider whether the
  information can be conveyed in a way
  that states the company’s position
  in the most positive light.
• Take
  minutes or notes regarding everything
  the C.O. does and says, including those
  to whom he or she speaks (the C.O. has
  the right to interview employees outside
  of your presence, but you may be present
  when supervisors are interviewed). Be
  careful what you write, as anything
  written is discoverable—meaning
  it can be requested and used during a
  trial.
• If the
  C.O. has a video recorder, remember that
  even though it may be pointed to the
  ground, it may be recording audio. This
  is a common tactic used during
  inspections.
• Do not
  take pictures or write emails during or
  after the inspection that could be used
  against you—they are discoverable.
  
• Refrain
  from having employees write witness
  statements of the events that caused the
  inspection—these statements are
  admissible at time of trial and are
  seldom beneficial.
• A
  company representative can be present
  when the C.O. interviews a supervisor,
  and a knowledgeable representative or
  attorney should always be present. This
  representative should ask for a copy of
  any written statements immediately upon
  the conclusion of the interview—do
  not let the
  supervisor sign a written statement
  until you are sure it properly states
  the testimony of the supervisor.
• Limit
  the C.O.’s conversation with
  employees at their work stations and do
  not permit employees to group themselves
  around the C.O. or to engage in group
  discussions.
• Avoid
  reenactment of accidents and merely
  permit the C.O. to review the normal
  operations.
• Take
  thorough notes at the “closing
  conference” when the C.O. reviews
  his or her findings. An experienced
  attorney skilled in OSHA defense should
  be present if it is a significant
  matter, such as a fatality.
• Determine whether to
  contest any citation based upon the
  costs involved, the penalty amount, the
  severity of the citation, the precedent
  set, the ability to abate the alleged
  violation (time and method), the
  likelihood of future violations, and the
  impact on other possible collateral
  litigation. An informal settlement
  conference is available at OSHA’s
  offices, but is seldom beneficial.
  

While a company can receive a
substantial reduction in an imposed
monetary penalty through a settlement,
it is crucial to consider whether the
other requirements of the settlement may
be more damaging to the long-term health
of your business. If the settlement
requires you to change your methods of
operation in some fashion that will
either be excessively costly or
substantially impede effective and
economic production, then a settlement
may not be a good option. Do not measure
the success of the outcome of the
investigation by the number of dollars
that the penalty has been reduced, but
instead, by whether the agreed-upon
abatement efforts impede your normal
operations. Also, it is possible that
other types of civil court actions and
administrative proceedings may arise out
of the accident, and any of OSHA’s
documentation will be discoverable.

OSHA’s enforcement activities
have changed dramatically in recent
years, and businesses must refine their
approach to dealing with OSHA in order
to successfully make it through
inspections. Few attorneys and
consultants are adequately equipped to
deal with safety issues, especially when
there are serious accidents, so it is
worthwhile to seek out a consultant who
is very familiar with safety issues and
OSHA proceedings. Take the time now to
consider how you will approach an
inspection before your day comes. Having
a pre-set plan in place can make a
significant difference in OSHA’s
final determination and any penalties
your business may face.