Surviving an OSHA Inspection

March 9, 2022

Imagine the following scenario:  you’re in your office when the receptionist knocks on your door, enters and puts a business card on your desk.  It reads, John Smith, OSHA Compliance and Safety Officer.  You sit back in your chair and loudly exhale wondering why Mr. Smith is here and what the heck is he going to find in your plant. You get up from your desk and go with trepidation to meet Mr. Smith.

Has this happened to you? If you haven’t, it’s likely you will—especially if you find yourself in a perceived ‘high risk’ industry.

OSHA (especially under the Biden administration) is increasing their safety officers to conduct more inspections. Furthermore, OSHA is proposing to increase penalties:  Maximum fines for willful, repeat and “failure-to-abate” to increase from $136,532 to $700,000 and minimum penalty to increase from $13,653 to $70,000.  One violation could effectively put your company out of business, especially since the company is likely to receive multiple citations.

OSHA typically prioritizes inspections based on 4 categories:

  1. Imminent danger – reasonable certainty of a fatality — therefore top priority inspection
  2. Fatality/catastrophe – a report was made to OSHA and you can expect an inspection ASAP
  3. Complaints/Referrals – a worker filed a complaint about safety or health hazard — lower priority inspection
  4. Programmed inspections – covers industries with high injury and illness rates, specific hazard etc. This is the level of most inspections.

What can you do to survive an inspection?

First, do you have a written internal guideline for OSHA inspections?  If you don’t, create one immediately and make sure leadership, safety, human resources and even the receptionist knows the expectations should OSHA show up at your front door.

Second, understand what you can expect during an OSHA inspection.

OSHA does not and will not notify you of an inspection in advance.  The compliance officer shows up and you allow them on your premises.  You can refuse entry, as you have the right to request a warrant to come on site.  This is not advisable in most situations.

There are three parts to an OSHA visit:

  1. The Opening Conference: The OSHA officer will identify themselves, with a credentialed badge, state the purpose of the visit and what they would like to accomplish while on site.  TIP:  Have this initial meeting in a conference room or office area with little information on walls, such as incident reports etc – never put them in the safety or plant manager’s office.  You will need to have the owner/plant manager, safety manager and/or employee representative in attendance.
  2. The Inspection or Walk Around: This is their primary purpose for the visit.  Review the scope of their visit and keep them within the scope – for example, take them directly to the site they wish to see and not an extended tour of your facilities.
  3. The Closing Conference: This is where the officer will identify potential citations and follow-ups. This discussion may or may not occur the day of the visit.

Third, approach this scenario knowing that OSHA is there to save lives and prevent injuries.  Getting defensive and combative is likely not going to be helpful.  Work with the officer in a manner of cooperation and partnership.

Fourth, be prepared to address the critical areas the officer will focus on:

  1. Training records required by OSHA standards
  2. Records of injuries and illness – OSHA 300 log and 300A summary for 5 years.
  3. Medical exams when required by OSHA standards
  4. Proper PPE
  5. Proper posting of required notices – for example, the 300A summary must be posted from February 1 to April 30th

On the inspection tour or walk around, make sure you do the following:

  1. Walk with the CSHO and never leave them alone or without an escort.
  2. Make sure everyone is wearing correct PPE including the CSHO.
  3. Identify and photograph the same conditions the CSHO does – and take detailed notes on what the CSHO is identifying and correct any unsafe conditions or behaviors immediately as this can build “good faith” with the CSHO. WARNING – be careful because you do not want to agree that a hazard exists.
  4. Make sure the CSHO knows all photos are trade secrets.
  5. If an employee is to be interviewed, be aware they could be interviewed in private.
  6. CSHO could attempt to increase the scope of the inspection, but try to keep them on task as discussed in the opening conference.
  7. If asked questions by the CSHO, do the following:
    1. Pause – think about your answer.
    2. Only answer the question asked.
    3. Avoid arguing with the CSHO – it will get you nowhere and you will likely lose.

Once the inspection is over, you may not hear anything for several weeks or months.  Citations and penalties can be issued only by the Area Director and will arrive via certified mail.  As the employer, you are required to post the citations for 3 days or until abated– whichever is longer.  Penalties may be reduced based on your good faith in work with the CSHO, the size of your business and your inspection history.

As mentioned, there are several different violation types:

  1. Willful: This is bad; you knew there was an issue and you intentionally and knowingly committed a violation.
  2. Serious: There is substantial probability of death or serious injury, and you likely knew or should have known the hazard existed.
  3. Other-Than-Serious: A violation has a direct relationship to safety and health, but likely would not cause death or serious physical harm.
  4. Repeated: A violation same or similar to previous violation – this could result in a significant penalty.

Remember — There is an appeal process if you face citations.  This could be informal or formal and could escalate up to an administrative law judge for a ruling.

In order to survive an OSHA inspection, being prepared is critical.  First, have your guidelines written out and reviewed by your team.  Make sure you or a member of your team are trained in OSHA rules specific to your business and can address issues before they become a violation.  Work with an outside party to conduct a mock-OSHA inspection.  Some OSHA agencies in certain states will conduct these for you. This has the added benefit of helping build “good faith” if an actual inspection is required.  Make sure you can document all of your safety training and that new hires and/or temporary employees receive safety training.  As a point of emphasis:  Having organized training materials quick accessible as well as facility housekeeping go a long way during an OSHA visit.

Finally, be honest and be courteous.  The OSHA officer has a job to do just like you with a shared common goal—to make sure your employees go home safe to their loved ones.

For further information on mock OSHA inspections or developing OSHA guidelines for your operation, please contact your Cottingham & Butler representative.