In 1970, Congress created the Occupational Safety and Health Administration (OSHA) to ensure safe and healthy working conditions for working men and women. Over the past few months, I have been inundated by employer inquiries on how to deal with OSHA and COVID-19 issues.
Since the pandemic started, there have been over 31,000
COVID-19-related complaints to federal and state OSHA offices. OSHA
has a number of ways to investigate these complaints, including
written inquiries, document requests, and inspections. An OSHA
inspection can sometimes be quite intimidating for employers.
Therefore, employers should know their rights before OSHA shows up
for an inspection. Seven key elements of OSHA inspections, along
with employers' corresponding rights, are described
below.
Inspection - Some inspections are planned, but
OSHA can also make unannounced visits, such as in response to an
employee complaint or following an accident or exposure. An
employer's primary objective should be to limit the scope of
the inspection. OSHA can cite for any observable offense, so
limiting the area that inspectors examine is vitally important.
Never offer to give the inspector a tour of your entire
facility.
Opening Conference - This is the most important
part of the inspection, and is usually your first contact with the
inspector. The opening conference allows you to learn why OSHA is
conducting the inspection. If the inspection is due to an employee
complaint, ask to see the complaint so that you may limit where the
inspector goes in the facility according to the area(s) implicated
in the complaint.
Let's assume the visit is unannounced. Employers should have
a plan in place to address an unannounced visit. They should
designate one person, such as a member of the Human Resources (HR)
department or someone responsible for employee safety, to engage
with the inspector. If the designated person is not located at the
facility where the inspection is occurring, ask the inspector to
wait for the designee. Inspectors usually will wait up to one hour.
If it is not possible for your designee to attend every inspection,
then have the most senior management personnel meet and accompany
the inspector.
Walk-Around - Employers must have someone
accompany the inspector at all times who will take the same
photographs and measurements as the inspector. If the inspector
needs to enter an area that requires Personal Protective Equipment
(PPE), make sure that the inspector has their own. Do not lend them
yours, or the inspector could find fault with the type or condition
of your equipment.
Interviews - OSHA may interview employees, but the
employees are also permitted to refuse to consent. Ensure that
employees are aware of their right to refuse to be interviewed. If
OSHA asks to interview anyone in management, you may ask for
another manager, or preferably counsel, to be present. Counsel
should be present when managers or supervisors are interviewed
because their statements can legally bind the company. Do not
volunteer any information during the interview or the
inspection.
Documents - The inspector can ask to review
documents such as your logs or, in places like California, your
written Illness & Injury Prevention Program (IIPP). Failure to
have an adequate IIPP is one of the most citable offenses, so it is
best to have your plan reviewed on an annual basis. Although OSHA
may ask for other documents, you should not feel rushed to provide
them if they are not readily available, or if the request seems
unreasonable or unrelated to the complaint. Instead, ask the
inspector to put the request in writing so that counsel can review
it and possibly limit its scope. Also, be wary of requests for
video surveillance. The accident or exposure may have been caught
on video. Usually, OSHA is entitled to obtain the video, but
employers should only provide footage of the time and location of
the incident. Producing too much video opens up the employer to
other unrelated citations if the inspector sees any observable
violations.
Abatement - If there are any violations that can
be fixed during the inspection, fix them while the inspector is
there. This will usually decrease the fine and possibly the
severity of the offense.
Closing Conference - The inspector must provide
you with the preliminary findings. Preliminary findings, however,
do not indicate that you will get cited. Thus, this is not the time
to argue. If you do get cited, there is a process to seek early
resolution via an Informal Conference. If that is not successful,
employers may appeal.
In summary, employers should design a plan to execute when OSHA arrives for an inspection. Given the high volume of COVID-19-related complaints recently, the likelihood that employers will have to face an OSHA inspection rises every day.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.