An OSHA Inspector Shows Up… Now What?

At some point, an Occupational Safety and Health Administration (OSHA) inspector will visit your construction or manufacturing company.  The question is; however, was he or she expected at your site?   Either way, it is important for your company to create a plan to effectively manage an OSHA visit, the inspection, and possible fines.  You must also communicate the established company plan to others so everyone is on the same page when an inspector arrives at your worksite.

The Inspector Arrives

When an inspector arrives, he or she should present his or her credentials and ask to meet with the supervisor who is responsible for the job site or the company.  The inspector must also tell you why they are at your site, whether it be a scheduled visit or the result of a complaint.  You do have the right to refuse the inspection.  However, if you do refuse, the inspector may get an inspection warrant or subpoena for your records.

The Opening Conference

During the so-called opening conference with the inspector, your chosen representative should take good notes and ask about the reason and scope of the visit.  If there has been a complaint involving imminent danger, a fatality, or a catastrophe, the opening conference will be shorter.  The inspector will want to go directly to the scene of the accident.  But, if the inspection is the result of a complaint, you should ask for a copy of the complaint before the walk-around inspection.  OSHA inspectors have the right to interview employees and review relevant safety documents; therefore, it is important for you to ask if they plan to do so or not.

The “Walk-Around”

After the opening conference has finished and you have been made aware of the inspection scope, you can then take the inspector directly to the areas he or she wants to see.  Make sure you listen carefully to the inspector directly throughout the walk-around. Your company should have either the safety director or manager walk with the OSHA inspector and take duplicate photos and/or videos during the actual inspection.

Employee Interviews

As mentioned above, the inspector has the right to interview your employees.  However, you should tell your employees of their rights and give them tips for talking with the inspector.  Employees have the right to the following:

  • Refuse the interview.
  • Request a manager to be present during the interview.  If needed, the interview should be rescheduled to accommodate this request.
  • End the interview at any time.
  • Request signed and/or written statements of the interview.

Employers should do the following:

  • Tell the truth.
  • Answer basic facts, such as who, what, when, and where.
  • Do not speculate or guess, but you can use statements like, “We are still investigating.”

Closing Conference

Once the walk-around and the employee interviews are complete, the inspector will hold a so-called “closing conference.”  Your safety manager and/or other management should attend this meeting and take good notes on what was found.  During this meeting, the inspector may also provide a preliminary list of potential citations that may be issued to your organization.

Immediate Steps After a Citation

If you receive an OSHA citation following the inspection, you will need to decide whether you should either accept the penalty or contest it.  If you choose to contest the citation, follow these guidelines:

  • the fact that your company did not violate the regulation cited
  • the penalties are unreasonably high
  • your company has a valid affirmative defense , such as an employee misconduct defense

If your company wants to contest the citation, a Notice of Contest must be filed within 15 business days after the citation receipt.  If you fail to do this, you will be deemed to have accepted the citations and penalties.  The Notice needs to identify whether you are contesting specific citations, all citations, specific penalties, and/or all penalties.

A primary consideration to contest a penalty is the cost.  The maximum penalty for a “Serious” violation is $7,000.00.  OSHA often gives a lesser penalty, however,  you may spend tens of thousands of dollars taking a contest through trial.  In short, while there are citations worth fighting, the expense and difficulty of winning a contest makes it imperative you pick your fights wisely.