By: Rudman Winchell Attorney F. David Walker IV
Every year OSHA conducts thousands of inspections of private businesses around the country. In the State of Maine alone, more than 600 inspections of Maine businesses were conducted in the last fiscal year. A review of statistics published by OSHA reveals that, on average, OSHA inspections result in the issuance of two citations. In some cases businesses receive several citations as a result of a single inspection. Fines associated with OSHA citations range from $1,500 to $2,500 on average. Fines can be much more severe, however, reaching as high as $70,000 in cases where an employer was found to have willfully and knowingly disregarded OSHA regulations. Needless to say, OSHA fines can be a serious matter for many small businesses.
Most businesses are fortunate enough to never have to contend with an OSHA inspection. For those that do, it is vital that the inspection be handled properly. OSHA inspections are almost never announced. When a local OSHA compliance safety and health officer (CSHO) knocks on your door, it will be an unwelcome surprise. Many employers make the mistake of assuming that he or she is a mere passive player in the OSHA inspection, and simply turns over the keys to the workplace to the CSHO. This is a mistake. It is vitally important that employers assert themselves and take an active role in the inspection process from the initial interaction with the CSHO through the completion of the inspection. Following some simple tips will help you negotiate the process and minimize your exposure during an inspection.
1. Determine the Purpose of the Inspection
First, determine the purpose of the inspection. Typically, OSHA inspections are prompted by one of three things: 1) an employee has made a complaint, 2) there has been an accident at your workplace, or 3) your workplace has been targeted as part of a special emphasis program.
If your inspection was prompted by an employee complaint, you are entitled to a copy of the complaint. There is almost always a written complaint that was submitted by the complaining employee. The employee has the right to request that OSHA withhold his or her identity, so you may not know which employee submitted the complaint. If you do happen to know the identity of the employee that submitted the complaint, it is critical that you not take any action to punish or retaliate against the complaining employee. Federal and state laws afford strong legal protections to employees that submit OSHA complaints, even if it turns out that no citation is warranted.
If your inspection was prompted by a special emphasis program, you should ask the CSHO for a copy of the program’s criteria. From time to time, OSHA creates a program on the national or local level targeting specific types of businesses. This usually occurs when there has been an increase in accidents in a specific sector of the economy. If your business has been targeted as part of an emphasis program, you should review the criteria associated with the program to make sure that your business actually meets the criteria.
2. Consider Rescheduling the Inspection
Employers often mistakenly believe that they have no choice but to grant the CSHO immediate access to the workplace. The fact is, unless the CSHO has a warrant signed by a judge (they rarely do), you are not required to permit the inspection to go forward. You should consider whether all of the necessary people are present to handle the inspection. The inspection should not proceed without a representative from senior management, human resources, and safety compliance present and participating. If your business does not have a dedicated safety compliance employee, you should ensure that individuals familiar with the company’s human resources policies and safety procedures is on hand for the inspection.
You have the right to consult with an attorney and to have an attorney present during an inspection. The cost of consulting with an attorney and having one present during an inspection is often marginal when compared to the expense associated with OSHA fines.
You should ensure that you have a camera with you during an OSHA inspection. CSHO’s generally carry a camera and photograph violations observed during an inspection. You should not permit an inspection to occur unless you are equipped with a camera so that you can take photographs of everything photographed by the CSHO.
It is almost always a good idea to inform the CSHO that you need to reschedule the inspection to occur at a time when you are prepared and key employees are available. While the CSHO may not like the request, he or she will usually agree to a scheduled inspection at a later time. This gives you valuable time to meet with the key decision makers within your organization, conduct your own internal workplace audit, consult with an attorney, and analyze the grounds for the inspection.
3. Seek to Limit the Scope of the Inspection
When the inspection does occur, you should seek—to the greatest extent possible—to limit its scope. If the complaint concerns an eyewash station, for example, you will want to lead the inspector directly to the station via the most direct route. Remember, CSHO’s can issue a citation for any violation that he or she observes regardless of the purpose of the inspection. One common violation, for example, is for poor “housekeeping.” Housekeeping is OSHA’s term for maintaining an orderly workplace. Ensure that there are no boxes or other items stacked in passageways and corridors, exits are not blocked, and that sanitary conditions are maintained.
In the real world, it is often difficult to limit the scope of the OSHA inspection. Compliance officers can be aggressive and may demand access to other areas of your workplace. In these situations it is often helpful to have an attorney present. By having a plan in place prior to the inspection, you will have a much greater chance of limiting the inspection to relevant areas.
4. Challenge Citations
Finally, it is important that you carefully analyze any citations issued as a result of an inspection. As noted above, the average OSHA citation carries costly fines. You or your attorney should analyze the specific regulations that are alleged to have been violated. Even in cases where a citation is warranted, OSHA will often negotiate with an employer and agree to reduce a fine or the classification of a citation. Keep in mind, the fines associated with citations increase exponentially. A $1,500 fine for a violation will be much higher if OSHA determines in a subsequent inspection that there is a “repeat” or willful offense. Once an inspection has been conducted and citations issued, your business is likely to remain on OSHA’s “radar” and is more likely to be subjected to subsequent inspection.
You only have 15 days to notify OSHA of your intent to challenge a citation. Whether you feel that the citation is unwarranted or simply want an opportunity to negotiate a lower fine, if you do not submit a written notice of challenge within this time period, you lose your right to challenge the citation forever. If you receive an OSHA citation, you should consult with an attorney that specializes in OSHA matters. It is often the case that the attorney fees incurred are offset by negotiated reductions in fines. An attorney that does not have experience in dealing with OSHA may simply make your problems worse.
This brief article addresses some of the major considerations related to OSHA inspections. This is a complicated subject and there are many important issues that cannot be covered in one article. If you remember these points, however, you will be in a better position to respond proactively when OSHA knocks on your door.