Be Prepared For An OSHA Inspection
Companies frequently ask "Why is my company being inspected?"
The most likely reason is that your facility appeared on a computer-generated list that randomly triggers inspections. Other possible reasons for a visit are complaints made to OSHA and serious or frequent accidents and injuries. Advance warning is usually not given, however, a warrant is required for the inspector to enter your facility.
If the inspector does not have a warrant, you may invoke your 4th amendment constitutional right, which means that you do not have to let the inspector into the facility. One of the primary benefits to demanding a warrant is that OSHA may simply go away. In 1994, OSHA sought warrants on less than 25% of these employers. The time it takes the inspector to obtain a warrant varies greatly (from later that same day to several days or months later). This passage of time may be critical for you to resolve any immediate compliance issues. The opposite response-not requiring a warrant-has the benefit of minimizing the number of citations per inspection. It is your decision whether to require a warrant or voluntarily consent to an inspection.
Understanding the aspects of an inspection
To prepare for an OSHA inspection, designate your representative prior to the inspector's arrival. Instruct the reception area to inform the representative when the inspector arrives. The representative should check the inspector's credentials bearing a photograph and serial number with the nearest OSHA office. Your representative should accompany the inspector at all times. The representative should be the same person throughout the inspection (two or more representatives could provide conflicting information). If at any time the representative has difficulty responding to a question, he/she should telephone for advice from an attorney or trusted knowledgeable source. Once the inspector is in, the protocol that is followed will consist of the following:
- Opening Conference
Credentials will be presented; you should check these. You will be told the reason for the visit and how extensive the visit will be. You will be asked who will accompany the inspector during the investigation. If there is no employee representative, the inspector is entitled to consult with a reasonable number of employees, in private, during the visit.
- Records Review
The inspector will review injury/illness records, including the OSHA 200 Forms. Be sure that you and your staff members know where such records are kept. What is found in the records will help determine the comprehensiveness of the inspection. If your records are in order and there is a low occurrence of illness and injury, the inspection may not be lengthy.
- Tour of the Facility
Cameras or video recorders may be used. At least one senior member of management should accompany the officer at all times. The inspection may cover all or part of the facility. The inspector can go wherever he or she chooses; however, the inspector cannot order work to stop, order employees to leave an area, or close down operations. He or she is allowed to warn employees of imminent danger.
The inspector will offer suggestions as to how any alleged violations can be corrected. It is possible that some hazards discovered by the inspector will need to be corrected immediately. This could include, for example, clearing blocked exits, labeling chemicals, and using personal protective equipment. You can still receive a citation and a financial penalty for a violation, even if you correct the problem immediately.
Be as cooperative as possible. Answer questions honestly and clearly. Never admit violations and do not volunteer information. Violations are often discovered due to admissions made by employers. Never leave the inspector alone, take detailed notes, and, if possible, take photographs or videotape of anything he or she records.
- Closing Conference
The closing conference will take place after the inspection is completed. It could be the same day as the opening conference or several days later, depending upon the amount of time the inspection takes. The inspector will discuss all unsafe or hazardous conditions observed during the visit. If you have made corrections, make sure that the inspector records this in his or her notes. For less immediate hazards, you may be asked for estimated correction dates. Do not admit that violations exist. You will be provided with a document detailing your rights and responsibilities. Be aware that whatever you say may be used against you. You may be asked how much time and expense will be involved in correcting hazards. If you are uncertain you can request a second closing conference, which will allow you time to obtain additional information.
- Informal Conference
If citations are issued, you will receive information notifying you of your right to attend an informal conference. This is an opportunity for you to visit the OSHA office to discuss the inspection and to show any action you have taken to correct hazards to present any documentation that was not available at the time of the inspection. Bring documentation of corrective action including photographs, orders, and invoices. Attending the informal conference will typically result in a reduction of financial penalties.
Violations and Penalties
If alleged violations are found, a letter with citations will be received a week or more after the inspection. There are four types of violations:
- Serious Violation
Death or serious harm could result; the employer knows or should have known about it. The penalty is up to $7,000 per violation.
- Other Than Serious Violation
There is no threat of death or harm. There is minimal or no financial penalty.
- Willful Violation
The employer intentionally and knowingly allows the violation. The penalty is $5,000-$70,000. If an employee fatality results, the fine may be higher and imprisonment is possible.
- Repeat Violation
The violation is not corrected. The penalty is up to $7,000 each day until the violation is corrected.
These penalties are maximums for each type of violation. Actual penalties are usually lower. Factors affecting the penalty are employer's good faith, history of previous violations, and the size of the business.
Any member of management can give permission for the inspector to begin the investigation. Everyone who might be approached by an inspector should know what action to take and the appropriate parties to notify. The owner should always be alerted as soon as possible. If a calm and non-adversarial attitude is adopted from the start, the inspection is more likely to proceed smoothly.
To survive an OSHA inspection, ALWAYS BE PREPARED:
- Understand the law (consult 29 CFR 1910, General Industry Standards).
- Have a self-inspection program.
- Have prepared and in place the following written programs:
- Hazardous Communication Program
- General Safety Program
- Lockout/Tagout Program
- OSHA required forms (form 101 and 200)
- Safety Office (person to answer questions and represent your company during inspections).