Failure to plan for an OSHA inspection can be devastating.
No matter what size construction company you are, if you’re contracting in the state of California you’ve either heard about or seen a Cal/OSHA inspection take place. There are a variety of reasons Cal/OSHA or even the federal OSHA will show up at your doorstep, such as a programmed inspection, a complaint from a worker on site, or worst of all, a serious injury or fatality. In some rare cases Cal/OSHA will respond immediately to a call about an imminently dangerous situation. So, when OSHA comes knocking, what do you do.
Just as preparation of a work plan is a key element in performing safely on the job, it’s also the key to performing well on a compliance inspection and what you say can carry as much weight as what you do.
Following is a list of things to remember and recommendations for how you should train your people in the field to handle a compliance officer at the jobsite.
What You Should Do
- Verify the identity of the inspector (state identification and business card). In advance of the inspection you should have a policy about whether you will require a search warrant or not.
There are pros and cons to requiring a search warrant. Most employers don’t but every employer should consider this issue and have an internal policy. If you allow the inspection, let the inspector know that a warrant isn’t required, but a key person isn’t on site and the inspection can’t proceed without them.
Know who should be talking to the inspector, i.e., safety officer, manager etc. You can ask them to wait a reasonable period (30 to 60 minutes) for the key person to arrive. Have the inspector wait in an office. Explain that your policy requires the presence of a management representative during an inspection.
- During the opening conference, attempt to determine the reason for the inspection. Then try and limit the inspection to the subject matter that triggered the inspection. Although keep in mind that the inspector has the right to inspect the entire workplace ‒ wall to wall.
- Accompany the inspector throughout the inspection after consent is given. Take the same pictures the inspector is taking; the same shot from the same angle.
- If the inspector wants to talk to employees, they’re entitled to privacy when doing so. Your key person can be present if the employee has no objection or if the employee wants another person to participate in the interview. This right belongs to the employee. Let your employees know they don’t have to speak with the inspector if they choose not to, that’s within their rights. The inspector might object to this, accept his objection but make sure this ends up in the Employer’s Summary of Inspection Report and in your report.
- Don’t guess, estimate or speculate, i.e., guessing the depth of a trench, voltage in an overhead line, cause of fall, how hand got caught in machine. If you’re uncertain, don’t simply agree with the inspector, tell the inspector you’re uncertain.
- Don’t offer information that isn’t requested.
- Don’t admit a violation. It’s the inspector’s job to determine whether any safety regulations have been violated.
- If the key person hasn’t been expressly authorized to speak for the company, inform the inspector. Statements by management personnel can be admissions against the company.
- If there was an injury and you know Cal/OSHA is coming out, familiarize yourself with the appropriate regulations and make sure you know the company safety policies. Have your documentation in order and be prepared to provide it.
- Be courteous to the inspector. Nothing is gained and much can be lost by poor behavior on your part.
- Document the inspection process include records, notes, samples, photographs, etc. made or taken during the inspection. It’s recommended you discuss the proper handling of your report with your company counsel.
- If the inspector is being arrogant and/or threatening, you can excuse yourself (make sure you don’t let him continue the inspection on his own) and call the District Manager’s number on the inspector’s business card.
What you say and do during the inspection can either help the employer with the defense of the case or “sink the ship.” These inspections are critical times for gathering facts and developing your defense to OSHA citations so it’s critical that you have a plan before OSHA shows up on the site. Make sure you know your rights as the employer and who is authorized to meet with the inspector.
As the saying goes, “People don’t plan to fail, they fail to plan” and failure to plan for an OSHA inspection can be devastating.
By Jonathan S. Vick of Atkinson, Andelson, Loya, Ruud & Romo