How An OSHA Inspection Works

Date First Published on SafetySmart Compliance: March 26th, 2012
Topics: OSHA Inspections |

Inspecting a Factory

The OSHA inspection process (and its aftermath) unfolds in 6 phases:

PHASE 1: WHEN THE INSPECTOR FIRST SHOWS UP

OSHA usually conducts inspections during the regular working hours of a workplace. With some exceptions, OSHA inspectors usually show up unannounced.

When the inspection begins, the OSHA inspector must present credentials to the owner, owner representative, operator or agent in charge.

Tips

VERIFY CREDENTIALS – Ask to see the credentials of the OSHA inspector if they’re not presented to you – just as you would ask any stranger who shows up at your facility unannounced. Asking for credentials isn’t just your right; it’s essential for your own security and the security of your workers. But don’t cop an attitude. After all, a person who shows up claiming to be an OSHA inspector is likely to be who he claims to be. Be polite and non-confrontational when asking for credentials. If the visitor refuses to show credentials, take the necessary security precautions as instructed by your company policy guidelines.

You can’t refuse to let a bona fide OSHA inspector enter your facility. But you may ask the OSHA inspector to get a warrant to conduct the inspection before entering and refuse entry without a warrant. Exceptions: You can’t refuse entry for lack of a warrant if you or one of your representatives has already given consent to the inspection or if there’s an emergency or urgent reason for the inspector to enter.

ASK FOR A WARRANT – Before exercising this right, remember that the inspector is only human. Making his/her job more difficult just to stall for more time to prepare may cause you more difficulties during your inspection. But if you have a good reason you shouldn’t hesitate to exercise your right to demand that the inspector get a warrant.

If the inspector does get the warrant, you must let her in. It’s also illegal to interfere with the inspector’s conduct of the inspection. But once the inspector is in, you may require her to follow the same policies, procedures and rules as any other employee or visitor. This includes insisting on the wearing of mandatory Personal Protective Equipment, the removal of dangling jewelry, etc.

TALK TO YOUR STAFF – As part of your training or orientation, tell staff in advance what to expect if an OSHA inspector shows up. Appoint a contact person and instruct her to notify other necessary company officials, escort the inspector directly to a pre-determined area (conference room or office), and remain with the inspector until a company official arrives. Tell the contact person not to take the inspector through any area but the designated area of your facility until you have determined the purpose of the inspection. (See PART IV below for more about how to prepare your staff to deal with OSHA inspectors.)

Scope of the Inspection

The inspector will also explain the scope of the inspection, i.e., how comprehensive it will be. Scope of inspection varies depending on the situation, the facility and reason for the inspection. OSHA conducts 2 kinds of inspections:

Comprehensive Inspections: These are the most thorough inspections. During a comprehensive inspection the inspector looks at all or substantially all potentially hazardous conditions, operations, and practices within your workplace.

Partial Inspections: These inspections are limited to certain potentially hazardous areas, operations, conditions or practices at the workplace. However, OSHA inspectors have discretion to convert a partial inspection to a comprehensive one if they find indications of problems during earlier phases of the inspection.

PHASE 2: THE OPENING CONFERENCE

The inspector has to notify “all affected employers” of the inspection’s purpose and furnish a copy of the complaint, if there is one. Before conducting the inspection, the inspector is supposed to hold a brief meeting with employers and employees called the opening conference. During the conference the inspector will explain why he’s there and what to expect during the inspection. He might also distribute pamphlets or other handouts.

The opening conference is critical because you have a right to know the purpose and reason for the inspection.

Tips

ASK FOR AN EXPLANATION – If you don’t understand the purpose or reason, politely ask the inspector for an explanation. Demonstrate your willingness to cooperate and participate.

KEEP IT FOCUSED – Don’t hide anything, but don’t open yourself up by offering information not relevant to the purpose of the inspection during the opening conference.

There are 2 kinds of opening conference. In a joint conference the investigator meets with both the employer and the employees or employee representative at the same time. Inspectors are supposed to encourage joint conferences in the interest of open communication. But if the employer or employees object, the inspector will conduct separate conferences with each group.

DON’T OFFER TO CLEAN UP – If the inspector has to go through part of your production area on the way to the opening conference, do not attempt to clean up the area he/she has seen. The inspector will make note of any changes made.

Shielding Documents from OSHA Inspectors

Throughout the inspection process, OSHA inspectors will ask for access to records and other company materials it can use to determine what company representatives knew or should have known about particular hazards and decide what measures to take in response to them.

Not letting OSHA inspectors see the materials they’re entitled to see makes you liable for obstructing the inspection process and get you into even deeper trouble. But at the same time, OSHA’s inspection powers are subject to your legal rights. For example, OSHA inspectors may need to get a search warrant to access certain documents.

There are 2 other common situations where an employer’s rights and liberties might trump the OSHA inspector’s powers and allow for legally withholding information OSHA requests:

Situation 1: Materials Protected by Attorney-Client Privilege

Employers have the right to not disclose information and materials prepared for use by their attorneys that are protected by something called attorney-client privilege. But there are complicated rules you need to navigate to establish, maintain and invoke “privilege.”

FOR MORE HELP ON ATTORNEY-CLIENT PRIVILEGE

Click here to find out how to use attorney-client privilege to shield internal documents from OSHA inspectors

Click here for a Model Memo to your attorney that you can adapt to ensure that documents are protected by attorney-client privilege

Situation 2: Materials Considered Trade Secrets

The OSHA laws also give employers the right to withhold requested materials that are considered trade secrets. As with attorney-client privilege, the OSHA trade secret protection rules are complex and you need to jump through all of the right hoops to invoke them.

FOR MORE HELP ON TRADE SECRET PROTECTION

Click here to find out how to protect trade secrets during OSHA inspections

Click here for Model Instructions telling your staff what they must do to keep trade secrets confidential during the OSHA inspection

Click here for a Model Form you can adapt to request trade secret protection from OSHA

PHASE 3: THE WALKAROUND INSPECTION

The walkaround is the most crucial phase of the inspection. It’s where the inspector walks around your workplace looking for potential safety and health hazards and evaluates whether you’re in compliance with OSHA standards.

One of the first things an OSHA inspector will do is ask if you want a representative to participate in the inspection. According to the regulations, one or more employer and/or employee representative may accompany the inspector “throughout or during any phase of an inspection if the [OSHA Inspector] determines that such additional representatives will aid, and not interfere with, the inspection” (29 CFR 1903.8(a)).

Having an employee or employer representative accompany the inspector is an important right. But the inspector may refuse to let representatives participate if they interfere with the inspection.

Tip

Training a representative in advance how to monitor an inspector is a good way to protect yourself. For example, there have been situations in which violations were dismissed because the employee representative noticed that the inspector had done something improper.

TOOL—MODEL WALKAROUND INSTRUCTIONS FOR REPRESENTATIVES

Click here for model instructions for representatives to follow while accompanying OSHA inspectors during the walkaround inspection.

During the walkaround, OSHA inspectors may:

Take photographs and/or videotapes if they consider it necessary. For example, the inspector may want to take a picture of a machine that lacks a proper guard to document a violation. You have a right to get a copy of any photographs, video tapes, or voice recordings taken during the inspection. You’re also guaranteed that any trade secrets or confidential business information contained in such photographs, videotapes and voice recordings will be kept confidential.

Tip

In a comprehensive inspection, inspectors can look at just about anything. But most inspections are limited. In a limited inspection, inspectors may photograph or tape only things that relate to the subject of the investigation. So, for example, it would be inappropriate for an inspector to photograph a piece of equipment in the boiler room if she’s investigating a complaint about ergonomically unsafe keyboards in the office. Exception: Inspectors may widen the scope of an investigation if they notice notice an imminent danger during the walkaround.

Collect samples, including air and/or surface sampling. You have the right to get summaries of the results—but only if you request them.

Interview employees to ask them to point out hazardous conditions and to determine if advance notice of inspection (in the rare event that there was advance notice of the inspection) has affected the inspection conditions. Inspectors can interview employees in private if they think it necessary. Employee statements are confidential but can be used in court hearings. Although generally held during the walkaround, employee  interviews may be held at any time during the inspection.

Review records like OSHA 300 logs and accident reports. This may occur before, during, or after the walkaround.

Let you fix a problem on the spot. The inspector may offer suggestions or help in correcting any deficiencies or hazards noted during the walkaround. She may even give you an opportunity to fix the problem before the end of the inspection to avoid getting a citation.

Tip

TAKE PICTURES – Take a digital or video camera with you on the walkaround and take pictures of the items the inspector points out. If an inspector takes a picture or tapes something, you should too. This way you’ll have an accurate pictorial record that you can use in case the inspector later mischaracterizes or exaggerates the problem.

TAKE NOTES- Write down everything the inspector says, and even consider taking a tape recorder along during the inspection so you can tape the inspector’s every word. Don’t be afraid to ask questions.

BE POLITE – Don’t make condescending remarks, derogatory comments, or slurs about your employees, the inspector, or anybody else. Also steer clear of political comments and jokes that may be ethnically or morally offensive and remarks about anything not having to do with the inspection.

BE HELPFUL – Don’t argue with the inspector or try to hurry him around. Be as helpful and informative as possible.

BE COOPERATIVE– Inspectors may not accept anything from the employer such as a gift or even lunch. So don’t offer them anything but cooperation.

BE POSITIVE – Remain upbeat, but don’t try to be “best pals” with the inspector. The inspector is a professional and you must act the same.

BE PROFESSIONAL – Don’t ask the inspector on a date (even for coffee) or make any comments about appearance or clothing.

PHASE IV: THE CLOSING CONFERENCE

After the actual inspecting is over, the inspector will hold a closing conference to describe the results of the inspection, including any violations found and how long you have to correct them. Like the opening conference, the closing conference is attended by the employer and employee representatives, either jointly or separately, depending on the circumstances.

Tip

If you paid attention during the walkaround you’ll probably know what violations or concerns the inspector will bring up during the closing conference. Be prepared to provide explanations and estimates of when you can abate those violations at the closing conference.


The inspector may hold a second closing conference in person or by phone if he didn’t have all the necessary information at the first conference.

 

PHASE V: CITATION & RESPONSE

If you get cited you’ll receive copies of the citations by certified mail. The citation will list an abatement date, that is, a deadline for correcting the problem.  

Tip

Ask the inspector to fax you the citations as soon as they’re ready, instead of waiting for them to arrive via certified mail.

You must post copies of any citations you receive in a part of your workplace that’s accessible to all employees and leave them posted for at least 3 days or until you abate the violation.

If you get cited, you have 2 basic choices: Settle or contest.

Option 1: Settle/Abate

One option is to accept the citation, pay the fines and/or abate the dangerous condition you were cited for. The abatement deadline must be “reasonable.” If you think you can’t abate the problem by the deadline you can file a letter known as a “petition” formally requesting an extension. Filing a petition that meets OSHA requirements essentially stops the clock and gives you enough time to continue your work on correcting the problem. But rules apply:

  • You can’t petition for an extension unless you first make a “good faith effort” to meet the abatement date listed in the citation;
  • To get the extension, you must show that reasons beyond your control prevented you from correcting the violation by the abatement date;
  • You must send the petition to the Area Director of the U.S. Department of Labor who issued the citation no later than the close of business on the next working day after the original abatement date listed in the citation. For example, if the abatement date is December 12, 2012, your petition must be filed by Dec. 13, at the latest;
  • You must include the right information in your petition, including:
    • Date of request and identifying information such as the official OSHA inspection number listed on the CNP and the inspection date;
    • Steps you took to try to correct the violation by the abatement date;
    • How much more time you need and why;
    • Interim steps you’ll take to preserve safety until abatement is complete; and
    • Certification that you posted the petition.

 

TOOL—MODEL PETITION FOR MORE TIME TO ABATE

Click here for a Model Form petitioning OSHA for extra time to abate a violation that you can adapt.

 

If OSHA approves your request, somebody from the agency will let you know no later than 15 working days after the date you posted the petition at your workplace or sent the copy to the workers’ representative.

If OSHA denies your request, it will forward your file to the Occupational Safety and Health Review Commission within 3 working days after expiration of the 15-working-day period. The petition will then be subject to further review.

If you don’t hear from OSHA after the 15-working-day period, it’s a good idea to check on your request.

Option 2: Contest the Citation

The other option is to appeal or “contest” the citation by filing a document called a “notice of contest” that lets OSHA know you plan to contest and puts the citation and order to abate on hold until the contest is decided.

FOR MORE HELP—CONTESTING OSHA CITATIONS

Click here to find out how to contest an OSHA citation

Click here to find out about the risks and benefits you need to consider in deciding whether you should contest a citation

Click here for a Model Notice of Contest you can adapt if you decide to challenge an OSHA citation


PHASE VI: FOLLOW UP INSPECTION

OSHA may do a follow up instruction to make sure you corrected the violations you were cited for.

If it’s expected to take a long time for an employer to fix a problem, OSHA may also do what’s called a monitoring inspection to ensure that hazards are being corrected and employees are being protected while the abatement proceeds.

OSHA won’t normally do a follow up or monitoring inspection if you provide evidence that you’re abating the problem. Such inspections are generally used when an employer  has been cited for willful violations, or repeat and very serious ones. Follow up or monitoring inspections are also more likely to be used when the citation is because the employer didn’t abate a violation and/or the violation creates an imminent danger.

 
 
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