By Jody Warner, CSP, CFPS
Published in the May 2007 issue of Today’s Facility Manager
In addition to the numerous responsibilities of today’s facilities managers, one of the more ominous events is an inspection by the Occupational Safety and Health Administration (OSHA). OSHA, as most facility professionals know, is the federal center of worker safety activities, risk based rights, and Department of Labor safety policy enforcement.
OSHA’s mandate suggests its primary purpose is to protect workers from injuries and “…to provide a work environment that is free of recognized hazards….” But the organization is widely viewed as the financial enforcer of an overzealous, out of date federal work safety policy that has become one of the primary methods of worker retaliation against employers.
What Triggers It?
According to current data, inspections by federal and state OSHA agencies have decreased in recent years. But an average of 1,000 employers per week still receive a compliance inspection; it is a very real possibility, considering that almost any current or former employee can initiate an event. An inspection can be triggered for one of the following reasons:
Imminent danger. Allegations of this nature will receive highest priority. The inspection will be conducted within 24 hours of notice to OSHA unless extraordinary circumstances exist.
Fatality and catastrophe. Accidents will be investigated if they include any of the following conditions:
- One or more fatalities;
- Three or more employees hospitalized for more than 24 hours;
- Significant publicity; or
- Program inspections based upon federal OSHA priorities.
Employee or ex-employee complaint . Complaints are investigated by inspection or by letter. If OSHA formalizes the complaint by sending a letter, the company’s response should not be taken lightly. Complaints to OSHA that are signed by an employee will always result in an inspection. The inspection, however, may be limited to the items in the complaint.
Programmed inspection. OSHA policy requires that programmed inspections will be conducted in industries where OSHA expects to achieve a significant impact or has targeted specific hazards.
Follow-up inspection. OSHA can re-inspect to assure that an employer has abated the violations that have been cited. Fines are approximately 10 times higher for “Failure to Abate” citations.
Do You Need A Lawyer?
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, employers have been strongly advised in the past to have counsel directly involved during an OSHA inspection in conjunction with a major accident or event.
If the inspection results from a fatality or serious injuries and/or a lawyer is present 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. Then the attorney can step in when OSHA wants to begin interviews.
Facility professionals have other rights as representatives of an employer. But if an OSHA inspector is allowed into the facility and the management staff acts in a cooperative, businesslike manner, unfortunately the company in question will permanently waive a number of its rights.
Ask For A Warrant
An employer’s rights are only preserved by a request for an inspection warrant. This is merely a simple matter of procedure; it is not a criminal warrant. Facility managers who do not ask for a warrant will have committed to a “voluntary” inspection.
Professionals have several important things to know when an administrative warrant is served: it can only be served upon an authorized employer representative (usually a corporate officer), and arrangements can be made for the inspection to be conducted at a reasonable time. It does not authorize an inspector to march into a facility accompanied by armed guards. It does mean that the inspection will be conducted at some time during a 30-day period.
What To Expect
Preparing for an inspection has several benefits. It allows the facility professional to be in control of the event, creates a positive impression on an inspector, and may result in fewer violations. It is good to anticipate the following items:
Inspection team. Who will be the person to greet and accompany the inspector during the visit? Typical team members include someone from management, a photographer, and a document controller. The purpose of an inspection is for the agency to gather evidence that violations are occurring or have occurred, so if photographs are taken by the inspector, the team should record the same thing at the same time.
The basics. Likely areas of concern should be addressed before the inspection, including proof of:
- Training and documentation for housekeeping;
- Compliance with regulations;
- Injury/illness records for the past five years;
- Hazard communication, lockout, and respirator programs;
- Emergency preparedness and evacuation procedures;
- Access provisions for exposure and medical records; and
- Posting requirements.
Documentation. Documents should only be provided when specifically requested. The document controller should be the only person to present the requested material, which should be logged. Unsolicited material stays out of sight—anything an inspector notices can be used against the company.
Employee interviews. Employees should be prepared to answer questions truthfully; however, they should not volunteer any information. Questions should be answered specifically as they are asked in order to keep the inspection focused. No one should speculate if they are not sure of an answer. They should state, “I’ll check the facts and get back to you.”
Any employee has the right to refuse to speak to an inspector, request that management be present, or speak to the inspector in private. An impromptu interview should not last more than 10 minutes.
When The Inspector Shows Up
The inspector should be greeted cordially and directed to a specific place; this will prevent him/her from strolling around the premises. The inspection team should be notified of the inspector’s arrival. If management is not available, the inspector should be asked to reschedule the visit.
Things to do:
- Request credentials, call the office for verification, and make copies of the credentials.
- Find out about the purpose of the inspection. Why is the inspector visiting? Is it due to an employee complaint? Or is it a programmed inspection?
- Determine the scope of the inspection. If it is due to a complaint, facility professionals can ask for a copy of the complaint and negotiate the scope of the inspection, which should only address the specific complaint or question.
A wall to wall inspection is usually required only when all four of these triggering criteria are met:
- An employee complaint is received.
- The business is in a high injury rate industry.
- The employer has a lost work day rate at or above the national average.
- OSHA has not carried out a complete safety inspection during the last two years.
The Closing Conference
At the end of the inspection, the company will benefit from—and insist on—a closing conference with the OSHA representative. This is an ideal time to ask the inspector to specify citations that will probably be issued and find out how the violations will be characterized. However, it is not a time to make abatement date promises or consider the issue closed.
In the aftermath of the inspection, the team should review the results and correct any deficiencies noted by the inspector. If errors are found, the company should respond with a follow-up letter to the inspector addressing any concerns.
If deficiencies are noted that the inspector did not appear to see, the team should correct those as well. Internal notes should be made so there is a record of when and how any deficiencies have been addressed and corrected.
OSHA is authorized to impose civil and criminal penalties on employers who violate its standards and regulations. Based on this fact, an OSHA inspection can be a stressful event for everyone—particularly owners of small businesses. However, a little preparation can reduce stress and make the event go as smoothly as possible.