|
OSHA
Inspection Survival Kit
If
you have not felt the brunt of an OSHA inspection recently, chances are
you will do so soon. Inspection
efforts are escalating. Often
it is a disgruntled employee who brings in OSHA - not the
"random" inspection. Also,
accidents which find their way into newscasts and newspapers frequently
trigger inspections as well. When
OSHA appears, the employer's initial response will determine its success
in avoiding and defending citations.
Therefore, procedures should be in place for dealing with an
inspection. Here are some
things you need to know in order to survive OSHA's calling card.
Inspections
are of three types - safety, health or a combination of both. When OSHA appears, you have two options - permit the
inspection or refuse it. If
the inspection is permitted, strict parameters need be set in order to
keep the compliance officer ("C.O.") from having the
opportunity to engage in a fishing expedition for additional violations.
Whether to grant access frequently depends upon the facts and
circumstances surrounding the citation and the working environment at
time of inspection. Generally,
however, if the C.O. appears with a proper complaint, he should be
permitted to inspect, but only for the item identified in the complaint.
The employer's limitations on the inspection should be stated to
the C.O. and those limitations should be strictly followed. Remember, OSHA is empowered to expand the inspection scope
and issue citations for other violations which may be in plain sight as
the C.O. moves between the entrance to the work place and the area of
the inspection. Anything
seen is fair game! It is so
important to limit the compliance officer's exposure that it is not
unusual for an employer to cause the C.O. to walk outside and around the
facility and therefore enter by a back or side door immediately adjacent
to the area of inspection.
An
employer has the right to deny access until a search warrant is
obtained. Some benefits exist in requiring a warrant - it identifies
the scope of the inspection, the time limitations for performing the
inspection and gives the employer time to get its house in order before
the compliance officer returns with the Court order.
Requesting the warrant is most advised, if there are numerous
items listed on the complaint or a "wall-to-wall" inspection
is intended. Historically,
compliance officers are not more zealous about the inspection, when
required to obtain a warrant.
Stick
with the following survival hints and avoid being overly cooperative and
overly communicative:
·
Review C.O.'s credentials
and obtain full name and office address
·
Determine if the inspection
is caused by complaint, is random or post-accident
·
Inquire as to the scope of
the inspection (specific piece of equipment, area or wall-to-wall)
·
If wall-to-wall inspection,
consider requiring search warrant
·
If narrow inspection, reach
agreement as to approach for inspection
·
Walk with C.O. (elbow to
elbow) through entire inspection - take C.O. to the site in the most
direct fashion
·
Take pictures of anything
OSHA takes pictures of from the same angle and at the same time
·
Provide no unsolicited
information and permit no one else to do so
·
Take minutes/notes
regarding everything C.O. does and says, including those to whom he
speaks (he has the right to interview employees outside of your presence
but you may be present when supervisors are interviewed)
·
If C.O. has a video
recorder, be cautious that, while it may be pointed to the ground, it is
recording audio (a favorite trick)
·
Take thorough notes at the
"closing conference" when the C.O. reviews his findings - your
labor attorney should be present
·
Determine whether to
contest any citation based upon the costs involved, the penalty amount,
the severity of the citation, the precedent set, the ability to abate
the alleged violation (time and method), likelihood of future violations
and the impact on other possible collateral litigation.
OSHA's
enforcement activities have changed dramatically in the recent years and
your approach to dealing with the agency needs to be reconsidered, if
you are to survive an inspection.
Bob
Dunlevey
Dunlevey,
Mahan & Furry
|
