Are You Prepared for OSHA? Part 2
In part 1, we discussed the pre-inspection planning process. This is Part 2, and we will cover what you do during an inspection, and in Part 3 we will discuss post-inspection defense and resolution.
Part 2: During an Inspection
According to the directives of the Occupational Safety and Health Act of 1970 (the Act), OSHA is authorized to conduct workplace inspections. These inspections can be prompted by a recent accident, a complaint from an employee, or a dangerous situation report. They can also occur as a follow-up to a previous inspection or as part of a planned investigation of a specific industry.
In most cases, you will not receive advance notice of an inspection. Exceptions include if the site presents an imminent danger; you need to prepare for the inspection; key employees need to be available, or the OSHA area director states that advance notice will result in a more effective inspection.
Based on the CSHOs’ findings, OSHA can issue citations and recommend penalties for violations. In some cases—such as individuals making false statements or providing advance notice of an inspection—OSHA can also file criminal charges. Therefore, you must always be ready for an inspection and know your rights.
The CSHO’s Arrival
When the CSHO arrives at your worksite, he or she should present credentials and ask to speak with the site manager or superintendent. If the CSHO does not offer credentials, request to see them. If you are unsure, it is your right to call your Areal Office and verify the CSHO’s identity.
If the CSHO has a warrant, take time to review it and make a copy. If he or she does not have a warrant, you have the right to deny entry. However, the CSHO will likely obtain a warrant fairly quickly, so it is probably in your best interest to comply with the investigation.
During an opening conference, the CSHO meets with the site manager and other applicable employees. He or she explains the nature of the inspection and indicates what records require review. The CSHO will also explain if the inspection is to be a comprehensive one or a partial one that focuses on one specific area. If a complaint prompted the investigation, the CSHO will provide a copy to you. At this time, the CSHO will indicate what interviews are needed. Do not hesitate to ask questions at this stage. You need to understand why the investigation is taking place and what issues you are facing.
Keep in mind that the inspection should be limited to the purpose of the inspection or details of a complaint. If the CSHO asks for a complete tour of the site, but the inspection is smaller in scope, you have the right to deny that request.
During the walkthrough, the CSHO will review the worksite and take note of the equipment. Be aware that the CSHO has the right to inspect only materials that are within plain view. There have been reports of CSHOs recording video of worksites before inspection, and courts have ruled that such footage falls into the plain view category. So, as always, you must maintain your safety equipment and discard anything that has been damaged.
If your inspection is only a partial one, and the CSHO begins asking questions beyond the scope of the inspection, you have a right not to answer. You also have a right to decline entry to areas outside the scope of the inspection.
Note that CSHOs are not law enforcement officers, and OSHA inspections are not criminal events, so inspectors will not read your Miranda rights before the process begins. However, you do have the right to remain silent if the questions are not related to the stated purpose of the inspection. Your site manager, or another designated person, should follow the CSHO at all times during the walkthrough. Allowing the inspector to roam freely is just asking for trouble.
Interviews and Witness Statements
During the inspection, the CSHO is allowed to privately interview owners, operators, employers, employees, crew members, witnesses, and agents on site. However, unless there is a subpoena, no one is required to participate in the interviews. You may decide it is in your best interest to cooperate, but it is not mandatory. Also, all interviewees are allowed to have a representative with them during the interview. This representative can be a supervisor, a coworker, or someone else they choose. Members of management are allowed to have legal counsel during interviews. In that case, interviews may take place at an OSHA office or an attorney’s office.
The CSHO may ask a variety of questions during the interviews. These may be specific to safety procedures and training, so all employees must be well-versed in protocols. Of course, all interviewees must be honest in their answers. However, they should take their time and be thoughtful. They should never feel rushed or pressured. CSHOs may also request that interviewees demonstrate safety maneuvers, such as putting on a harness or installing an anchor. However, no one is required to comply with these requests.
At the conclusion of each interview, the CSHO may prepare a written statement that summarizes the discussion. Note that if the interviewees do not agree with the findings or they feel uncomfortable in any way, they have the right to refuse to sign those statements. The employer also has the right to receive copies of all statements, whether signed or not.
Take extra care when CSHOs request to interview employees who speak another language. If your employees are not native English speakers, they may not understand questions, they may answer inaccurately, and they may not be able to read the written summaries. You can provide a translator if feasible, but also remember that these employees can decline the interviews.
After the walkthrough and interviews, the CSHO will hold a closing conference with site management. At that time, the inspector will discuss any noted violations and the possible citations that you may face. If you have any records or evidence related to the violations, you should provide those. If OSHA determines that a citation is warranted, it must issue it within six months of the inspection.
Next week we will cover Part 3 and discuss post-inspection defense and resolution.
John Kenney has over 45 years’ experience in the roofing industry. John started his career by working as a roofing apprentice at a family business in the Northeast to operating multiple Top 100 Roofing Contractors. As Chief Operating Officer, John is intimately familiar with all aspects of roofing production, estimating, and operations. During his tenure in the Industry, John ran business units associated with delivering great workmanship and unparalleled customer service while ensuring strong net profits for his company prior to joining Cotney Consulting Group. If you would like any further information on this or another subject, you can contact John at firstname.lastname@example.org