01/ 21/ 2005
by Beth Gaudio
NFIB Legal Foundation
The Occupational Safety and Health Administration, more commonly known as OSHA, is part of the U.S. Department of Labor. OSHA ensures that employers adhere to DOL safety and health regulations. OSHA conducts workplace inspections to make certain that employers are complying with the standards and providing a safe and healthful workplace.
Because OSHA is authorized to impose civil and criminal penalties on employers who violate their standards and regulations, an OSHA inspection can be a stressful and burdensome event for employers and small-business owners. This article answers some common questions about OSHA inspections and offers advice on preparing for a penalty-free inspection.
Question:
Why is OSHA inspecting me?
Answer:
OSHA may perform inspections in three general situations. First, OSHA develops lists of worksites from all industries with injury and illness rates at or above certain levels and chooses worksites from that list to inspect. This type of inspection typically occurs at worksites for 10 or more employees. Similarly, OSHA may implement inspection programs through which it selects worksites in certain industries for inspection. Second, OSHA may inspect a worksite after a major accident occurs, such as a fatality or serious employee injury. Finally, OSHA may also inspect in response to an employee complaint.
Question:
How do I prepare for an OSHA inspection?
Answer:
To reduce the risk of an adverse outcome with an OSHA inspection, the best approach is to prepare in advance by knowing the issues that you'll be asked about during an inspection and preparing a response to these issues.
An OSHA compliance officer typically arrives unannounced to inspect a worksite or when a serious accident or fatality has occurred. During an inspection, an employer should do the following:
1. Manage the inspection process to minimize operational disruptions;
2. Control the flow of information to OSHA so that when the inspection has ended, the employer understands the significance of the evidence OSHA has gathered;
3. Present the worksite in the best possible light; and
4. Be proactive by addressing OSHA's compliance concerns during the inspection so OSHA does not issue citations.
As expected, the atmosphere at the worksite might be chaotic and an OSHA inspector can receive conflicting information from different sources. Thus, an employer should designate one principal contact person to act as OSHA's main contact during every inspection to control the flow of information.
Question:
How do I avoid citations?
Answer:
One of the best ways to avoid citations is to gauge the compliance officer's concerns. You can do this by closely observing what issues the Compliance Officer focuses on and by directly asking the compliance officer about possible violations. By understanding OSHA's concerns early in the inspection process, the employer can provide information that refutes OSHA's factual findings or interpretation of the OSHA standard or regulations. This information may ultimately convince OSHA not to issue citations or at least to minimize penalties.
Question:
Do I need a lawyer?
Answer:
Each inspection is different, so the need for counsel will depend on individual circumstances. On one hand, a routine inspection that does not stem from a significant injury or fatality may be handled without an attorney. On the other hand, an employer is strongly advised to have counsel directly involved during an OSHA inspection when a major accident or event such as a catastrophic accident, serious injury or employee fatality has occurred. If the inspection results from a fatality or serious injuries and/or you decide that you would like a lawyer during the inspection process, the compliance officer will typically delay for a short period. The best strategy is often to allow OSHA to perform the walk-around inspection and review documents and then to have an attorney present later in the inspection when OSHA wants to begin interviews.
Important Disclaimer: The information provided in Small Business Legal Links is intended to provide general information for reference only and should not be considered legal advice. You should not rely or act upon any information contained here without seeking the advice of your own legal adviser.
