When OSHA inspectors show up at a workplace, the first people they usually encounter are the workers and supervisors at the site. What transpires between those workers and the inspector in those few moments can make or break the inspection.
Click here for a Model Policy on handling inspections to distribute to workers and supervisors.
Cooperation vs. Self-Incrimination
The start of the inspection is the crucial period and one fraught with tension. One false or rude remark by a worker and you might be in for a rough ride. That’s why most companies tell their workers to be courteous and cooperative. In fact, there’s a legal duty to extend cooperation to OSHA officials.
On the other hand, you don’t want your workers to be too cooperative. While inspectors have authority, inspectees also have legal rights during the inspection process. Caving in to—or worse, anticipating—the inspector’s every demand can compromise your legal position. More than one company has been hit with citations or higher fines because their workers gave away the store.
You Have the Right to Ask Questions
OSHA inspectors aren’t gods. They can’t just help themselves to whatever they want. Their authority is subject to your rights. The problem is that you need to understand and assert those rights.
For example, you might have to turn down an inspector’s demands for certain information the government isn’t entitled to see, such as privileged audit reports. If you just roll over, you might end up forfeiting your rights.
The Search Warrant Conundrum
Search warrants are a perfect illustration. Since 1978, U.S. courts have recognized that OSHA inspectors must have either a search warrant or valid consent to conduct an inspection. You may deny inspectors access to your facility or jobsite until they come back with a search warrant. Some people in the field recommend that you always ask to see a warrant, if for no other reason, to buy a little extra time. Others recommend a less confrontational approach. “They’re going to get in anyway, and the inspection is going to be a lot more comprehensive when they return if you insist on a warrant,” warns a Florida OSHA lawyer.
Ultimately, the employer must decide whether to ask an inspector for a warrant. The fly in the ointment: If you opt for a “let-me-see-your-warrant” strategy, you might have to rely on the workers on the scene to assert that right on your behalf. If you’re not there, in other words, it falls to one of your workers to demand to see a search warrant.
Create Policy Telling Workers How to React to Inspectors’ Requests
Situations like this are why it’s so important to train your workers to respond when OSHA inspectors appear at your door. One good way to get your point across is to adopt a company-wide policy. Click here for a Model Policy you can adapt.
Like the Model Policy, your policy should tell workers:
Who to Alert: Workers – particularly lower level staff apt to make first contact with the inspector, such as front desk attendants and receptionists — should be instructed to contact a proper company representative before letting an OSHA inspector into the facility. A knowledgeable person — such as a job foreman or business owner — should always meet with the inspector to determine the scope of his investigation and accompany him through the facility. Lawyers say that in most cases an inspector will wait up to 30 minutes for a company representative to come to the jobsite.
What to Ask: Tell the appropriate supervisor or manager at a job site to ask the inspector certain key questions so you can determine what the inspection is about and decide how to respond to it. Example: After discovering that an inspection was prompted by a complaint, a safety representative for a construction company directed an OSHA inspector to the machine that caused the injury and showed him how the company had since made the equipment safer with additional machine guards. The inspector was satisfied to limit his inspection to the area that the complaint focused on.
Key questions to ask an inspector include:
If a supervisor or manager isn’t available to ask these questions, the next-highest level official at the jobsite should. Or, somebody should ask the inspector to wait until a company representative arrives.
What to Say: While workers should be instructed to be courteous and cooperative, they should also be advised not to befriend the inspector or offer information that isn’t asked for. Nor should they offer opinions such as about whether something is in compliance. In addition, instruct workers to keep a detailed record of any conversations they have with OSHA inspectors and list any documents they hand over.
What Their Rights Are: If an inspector does interview your workers, make sure they know they can have a lawyer or company representative present at the interview. This is important because it protects your company and lets you know what the inspector may use in a subsequent prosecution.
You can use the Model Policy to prepare your workers to face an inspector. Distribute this policy to first line supervisors and other workers whom an inspector is likely to encounter. Be sure to adapt the policy to meet your company’s requirements and the laws of your state or province. And show the policy to your lawyer before distributing it.[fbcomments]