Let’s face it – Even those managers who are well-versed in every aspect of their business, including employee safety, get nervous when the OSHA Inspector (compliance officer) arrives. It’s not something that happens every day, and rumors about what really happens during an inspection run rampant. Even companies with the best safety programs, the best training programs and the safest employees know that there are weak spots in every management system. They also believe that if there is a weak spot, the compliance officer will probably find it.
The Catalyst Group recently conducted an informal phone survey of Plant Managers at several manufacturing locations across the US. Surprisingly, these surveys indicated that very few of those leaders actually understood their rights when an OSHA inspector arrives.
Before we get into the details, let’s first review the basics:
- OSHA is the Occupational Safety and Health Administration – the agency charged with establishing workplace safety and health requirements and monitoring compliance with those requirements.
- OSHA is a federal agency administered under the US Department of Labor. The agency was established by the Occupational Safety and Health Act (OSH Act) under President Nixon in 1971.
- Most private-sector and some public-sector employers are covered under the OSH Act.
- There are 22 states and one US Territory that have OSHA-approved State Plans that cover both private and public sector workplaces.
- OSHA approves and monitors all State Plans and those programs must be at least as effective as the federal OSHA program.
If you are (un)lucky enough to be visited by an OSHA Compliance Officer, here are 10 key points to remember:
- As an employer, you have rights under the OSH Act, but those rights will not be fully explained to you once the compliance officer is on site. Beginning today – you should understand your rights and pre-plan your response to an inspection with your company attorney to ensure you are prepared. You have the right to request a warrant before allowing a compliance officer to enter your facility, but there are pros and cons to taking this approach. This should be discussed during your pre-planning with your attorney.
- Always verify the credentials of the compliance officer before allowing them access to your facility. They are required to present these credentials upon request, you should not be embarrassed to ask. You should also ask for time to verify them. Call the regional OSHA office and ask for verification. It is not common, but impostors exist in many arenas and there have been reports of counterfeit credentials being presented for the purpose of stealing company secrets, or exposing internal company processes to the community or activist groups.
- A senior leader responsible for the plant should meet with the compliance officer and, ideally, remain with them throughout their time on site. Personal involvement by the Plant Manager is key to demonstrating company ownership of the employee safety and health program. If the OSHA inspector does not see evidence of strong management commitment, this may be reflected in the findings. The Catalyst Group recently worked with a company to remediate more than 30 citations which were issued to one of their plants following a tragic amputation incident. When the compliance officer arrived at the location, he requested an initial meeting with the Plant Manager. The Plant Manager briefly met with him, but went on to say, “I am busy with several meetings today, so my HR Manager will be with you for the time you are here on site. He is the one responsible for our safety program anyway.” An hour into the Opening Conference, the compliance asked the HR Manager to get the Plant Manager so that he could ask some specific questions. The HR Manager left the room and came back to say again that the Plant Manager was not available as he already had meeting scheduled that day. The compliance officer was visibly upset and we believe this had a significant impact on the results of this inspection. A total of 4 compliance officers returned for 5 separate on-site inspections over a period of 3 weeks. Over the course of that 3 weeks, the scope of the inspection expanded well beyond the initial incident and into other operational areas.
- Always clarify the purpose of the inspection. If the inspection is in direct response to a complaint or incident, you should try to limit the compliance officer’s access to all areas of your plant except those specifically included in the scope of the inspection. It’s not uncommon to take the inspector through an entrance other than the main entrance, just to minimize their travel through non-affected areas.
- Follow your pre-planned procedures from the time the compliance officer arrives until they leave. OSHA compliance officers are trained to gather information using many different tactics. They will ask open-ended questions and allow you to provide as much information as you choose. Anything you say can be used to take the inspection down a different pathway. Example: Let’s say that the initial stated purpose of an inspection is to investigate an employee complaint about the use of acetone in a particular work area. The compliance officer asks how you train your employees on the hazards of acetone, and your answer includes information about training on other chemicals. Depending on what information you disclose, they can expand their scope to cover other work areas where these additional chemicals are used. Answer only the specific questions asked and do not volunteer additional information. You always have the right to refuse to answer until you consult your legal counsel.
- Document everything. Have someone serve as the scribe and photographer during the entire time the compliance officer is on site. This person should take notes during the Opening Conference, the plant tour and the Closing Conference. If the inspector takes photographs, you should take duplicate photographs (shot from the same angle). If he/she makes drawings or sketches, either duplicate the drawings yourself or ask if you can make copies. If the inspection is in response to a health exposure (noise, chemical, dust, etc.), the inspector will most likely conduct industrial hygiene monitoring. You must have someone on site who can conduct the exact same monitoring at the same time and within the same parameters so that you can have your own results to compare.
- Inform your employees of their rights during your pre-planning so that they know what to expect. The compliance officer may ask to interview a few employees. Employees are not required to submit to an interview and they should be aware that they have a right to refuse. Of course, the compliance officer can get a court order to compel them to be interviewed, but that is not common. Most employees do agree to be interviewed, but they should also know that they do not have to meet with the compliance officer alone. They may request a company attorney, union representative and/or HR representative to be in the room with them during the interview. Members of management will not be allowed to be present during the interview.
- The compliance officer cannot shut down your operation without a court order. They can, of course, request that you not re-start an operation that they feel is a significant hazard. It would be in your best interest to comply with that request, both for the protection of your employees and to minimize the impact on the inspection results. Many Plant Managers we surveyed believe that an OSHA inspector can shut down their entire plant if they deem it to be hazardous. While it is true that if the inspector believes that the risk is extremely high, he/she can request a court order to shut down all operations, this happens only in the most egregious situations.
- Listen carefully to what the compliance officer says during the Closing Conference. The Closing Conference may not be held before the compliance officer leaves your facility. In many cases, they need time to review their notes, photographs and other documentation before drawing a conclusion about compliance or non-compliance. Sometimes the Closing Conference is conducted on the telephone if all parties agree. The Catalyst Group highly recommends that you request an in-person Closing Conference if you expect a citation to be issued. It’s usually easier to have any discussion face to face. Whether on the phone or in person, do not state your agreement with any finding. You may need to evaluate the information with your attorney before agreeing. You may, however, verbally disagree with any finding, but be prepared to present facts and documentation that clarify your position. Do not argue with the compliance officer, just clearly state that you disagree and the reason for the disagreement. You will have the opportunity to fully appeal the finding during the Informal Conference and/or a Hearing.
- From the time you first take on a leadership role in your company, use every opportunity to demonstrate your commitment to a safe and healthy workplace. This recommendation should probably have been listed first, because it is definitely the most important. If your employees and your management team know that you are committed to their personal well-being, this will be reflected in the outcome of the inspection. It doesn’t mean you will come away with no findings, but you will certainly have fewer. During their time in your facility, the compliance officer should see and hear evidence of your strong commitment – from you in your personal communications, from your employees during their interviews and from their observations of the physical state of the workplace. If your commitment is strong, it will be evident in everything that is seen and heard.