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10 Tips to Manage an OSHA Inspection

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Awareness of OSHA inspection rules can contribute to more desirable outcomes

Craig Shaffer, a certified safety professional and president of Dillsburg, Pa.-based SafetyWorks Inc., was representing a construction company during an OSHA inspection on a job site in Mechanicsburg, Pa., when he took this picture. It shows a worker standing on the rails of a lift and the chain is not hooked across the platform access opening. Shaffer says when an inspector conducts the walk-around portion of an inspection it is important for the foreman or other company representative to document circumstances surrounding potential violations so the company can determine how to prepare a defense or response.

Craig Shaffer, a certified safety professional and president of Dillsburg, Pa.-based SafetyWorks Inc., was representing a construction company during an OSHA inspection on a job site in Mechanicsburg, Pa., when he took this picture. It shows a worker standing on the rails of a lift and the chain is not hooked across the platform access opening. Shaffer says when an inspector conducts the walk-around portion of an inspection it is important for the foreman or other company representative to document circumstances surrounding potential violations so the company can determine how to prepare a defense or response.

The outcome of an inspection from the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) is significantly impacted by how well a company maintains its safety program and if it prepared an inspection process. Metal Construction News spoke with several safety experts about what companies can do to prepare for and manage inspections.

1. Plan ahead

Steve Yates is a construction health and safety technician, and founder and president of Naperville, Ill.-based Optimum Safety Management. His firm trains foremen and other company representatives at regional industrial and construction companies what to do when inspectors arrive on job sites and to have a copy of the procedure accessible. "[Foremen and other company representatives] literally have a book in their truck, they walk over, they grab it and start looking at it," he says.

Yates says he has heard of many instances when a foreman has mismanaged an OSHA inspection by interacting with an inspector without contacting the company or documenting anything. "And then the company gets a citation in the mail later," he says. "When you ask the foreman about it, they go, 'Oh yeah, he stopped by, he was a really friendly guy. He looked at stuff; he didn't say anything was wrong. He just took a few photos and said, 'Alright, well, I'll catch you later.''"

2. Respond to immediate danger warning and check identification

When an OSHA inspector approaches a foreman or other company representative, if he or she says there is an imminent danger, that may mean the inspector saw a worker from off-site being exposed to a safety hazard. "If there's an imminent danger [the foreman is] made aware of, he should immediately remove the employee from that danger," Yates says. "Don't argue with the inspector, just get him out of the dangerous area." The foreman should allow the inspector to see him or her correct the situation, Yates says. "What we don't want to be doing is working in front of the inspector in a way that's non-compliant with the standard," he says.

OSHA inspections begin with an opening conference in which the inspector and company representatives exchange identification information and the inspector explains what the reason for the inspection is. Craig Shaffer, a certified safety professional and president of Dillsburg, Pa.-based SafetyWorks Inc., teaches foremen, superintendents and other company representatives in the construction industry in OSHA safety training classes. Shaffer works as a safety director for companies and represents them during inspections. He says one of the first things an inspector will do is introduce himself or herself, and show official identification. Some inspectors Shaffer has seen multiple times, and who know him, still present their identifications to maintain the process, he says. Shaffer has heard of people gaining access to job sites through false representation for labor-related issues and other purposes unrelated to safety compliance. One company representative told Shaffer an inspector asked to take photographs of workers' crane signaling cards. The person who claimed to be an OSHA inspector didn't leave any contact information, and when they called the local OSHA office to ask who it was, OSHA said they didn't have anyone working in that area that day. Images like that can be used to make fake credentials, he says. "I tell everybody, make sure they are who they say they are."

3. Notify the office

After addressing any imminent danger and checking identification, the next thing the foreman or other company representative should do is contact his or her company's office to notify them an inspection is in process on-site, Yates says. The company can then respond by sending a representative or giving managers other instructions. Yates says when inspectors speak with a company representative they consider that person to be speaking for the company. "Otherwise they're opening an inspection of the company without the company knowing it," he says. "That's never a good place for a foreman to be. He always wants to make sure the company is aware."

4. Avoid requiring a warrant

Companies have a right to require a warrant be shown before an inspector is given access to a job site. The only time Yates says he would recommend the company require a warrant is if an inspector is not acting within what the company would consider to be reasonable accommodations such as giving them time to assemble a team of people before the inspection begins. "As long as OSHA is playing by the rules, be cooperative with them and don't require a warrant because if you require a warrant, it's like putting a stick in a hornets' nest," he says.

An inspector might try to press the company representative to get access to a job site, Yates says, but OSHA's field operations manual states companies should be given a reasonable amount of time to assemble representation before inspections. If the inspector will not comply with that, call the area office and let the area director know about the situation, he says. "If they still won't allow you to assemble your team, then you can tell them you will deny access to the site and they will need to go get a warrant. So there's kind of a healthy tension between being friendly and making sure that OSHA allows you your rights, which are called out in the field operations manual."

According to a statement OSHA sent to Metal Construction News: "OSHA respects an employer's constitutional right to request a warrant. When an employer refuses entry, OSHA uses standard operating procedures to decide whether or not to pursue a warrant. Once we decide to pursue a warrant, we work with our solicitors to obtain it, and then use the warrant to gain entry and conduct the worksite inspection. While the process results in some delay, it is important to follow the correct procedures before gaining entry to an employer's premises."

5. Choose to work or not work

Another decision the foreman or other company representative will make at the beginning of an OSHA inspection is whether to allow work to continue. Anthony Tilton, an attorney at Tampa, Fla.-based Trent Cotney P.A., represents construction companies during inspections and litigation of OSHA citations. Tilton says construction job sites are very dangerous and even when workers are well-trained, risk and exposure remain factors. While every situation is different, Tilton says he often advises company representatives to stop their crews before an inspection begins. "The worst thing you can do is keep working while the officer is present because he's seeing these risks and these exposures," he says. "So, what we do is we stop work."

Shaffer says he is aware many companies will stop employees when an OSHA inspector arrives on a job site but he says he tries to keep the big picture in mind. "That is not the image I want any of my clients to have with OSHA," Shaffer says. "I may not agree with everything that OSHA does; I understand their job is important and I want the same thing they do, which is a safe job. At the same time I want them to have the feeling that we may not be perfect, but we try hard. And we're confident enough to keep working while they're here. We work smart, of course, but I don't want to be in the back of their minds the one whose company leaves every time they show up. I just don't think that does us good in the long run."

Shaffer often advises clients to work smart during inspections, which should already be the case. "Safety isn't about OSHA; it's about not getting hurt," he says. "But when the OSHA inspector is there, if we don't need to be up on ladders, then maybe we can be measuring and cutting pipe. Some of the work is pretty simple and mundane, but you're working and you're busy."

If a job site is large and one or two contractors leave, Shaffer says an inspector might not notice. "If they do they might say, 'Hey, I'm coming back. I'll be coming back until they get back here; sooner or later they're going to have to get the job done and I'll be there.' So they'll keep the inspection open."

According to the statement from OSHA: "An open exchange of information between OSHA inspectors and a company's employees, including during interviews, is essential to an effective inspection. Ideally, work should continue as normal while OSHA is on the premises. If an employer deliberately sends employees off a job site, such actions are seen as impeding the investigation and the agency may then elect to use its subpoena authority to elicit necessary information regarding worksite hazards."

Data supplied by OSHA in this table is for Fiscal Year 2014, Oct. 1, 2013 to Sept. 30, 2014.

6. Take pictures and notes

Tilton says it is imperative that a company representative accompany the inspector during the entire walk-around inspection. "You want to be on his heels looking at what he's looking at," he says. "If he's taking a picture of trusses, you're taking a picture of trusses. If he's crawling down in an opening and examining rebar, you're examining that rebar. And what you're doing is, in your mind you're creating counter arguments, you're creating a counter report."

Without side-by-side photographs and notes from the inspection, Tilton says the company is at a disadvantage defending itself. "We have no idea what [the inspector is] going to come out with," he says. "And then moving forward in defending the citation and saving the company money, we have no idea what these citations are going to be. So I guess it's an intelligence gathering mission and we want to know what OSHA knows, and we don't want to be caught off guard."

Shaffer says he understands sometimes it's best to take only the pictures the OSHA inspector takes. "Legally, I 100 percent agree with that because I don't want to go taking pictures of things they didn't take a picture of and then at a later time have to produce it," he says. "All the same, sometimes I do want other photos to get a big picture of something that maybe their photo didn't include. So I guess, rather than going down too many avenues with that, yes, you take the same picture from the same place at about the same time so that I know what they're looking at."

7. Anticipate fine reductions

Shaffer says the inspector should be accompanied during the inspection to ensure his or her safety, to document it and because he might be able to correct a safety violation and get a reduction in a potential fine by showing good faith. Three reasons a fine may be reduced are for showing good faith, company size and prior history. For this reason Shaffer often trains foremen and others to bring an employee with them during the walk-around so if the inspector points out a safety hazard, the employee can fix the issue and the foreman can continue walking with the inspector. "They may fine me, they may not," Shaffer says. "And even if they fine me, I'm going to get a percentage off my fine for good faith, so I want to show good faith while we're walking around."

8. Exercise interviewee rights

Shaffer says when an inspector tells him he would like to conduct some private employee interviews, he approaches the workers with the inspector, explains their rights and then walks away. "The biggest thing is I want [the employees] to understand is that this is serious," he says. "Don't guess; you either know the answer or you don't, and it's OK to say 'I don't know.' And don't lie." Shaffer does this in front of the inspector because he says he is not hiding anything. "And I don't want the inspector to think that I'm coercing them, because I'm not," he says. "I just want them to know a little bit about their rights."

If employees decide they don't want to be interviewed, Yates says OSHA can subpoena them. If that happens, at that point an employee would likely have an attorney present, he says, so that doesn't frequently happen. "But I have seen OSHA take advantage of this process where they'll kind of put their arm around the employee and go, 'Hey, come over here, I want to talk to you for a minute,'" he says. "Now they've just separated them from their coworkers and their employer, and they're on their own with a federal agent, and they really don't know what their rights are. So we just like people to know that the employee has the right to a private interview, they have the right to stop the interview or not be interviewed at all, and they have a right to be represented."

The rules are different for interviews of company management. Tilton says the Occupational Safety and Health Review Commission decided that supervisors are direct extensions of their employers and, therefore, managerial employees have the right to have counsel present on behalf of the company. "Now, where that gets lost in the mix is when a supervisor or manager doesn't know that, they haven't met with us, they have no idea, and a supervisor starts answering an officer's questions," he says. "Some supervisors will even sign written statements. Those are big no-nos. We always say, as a supervisor you do not answer any of OSHA's questions without the assistance of counsel."

Tilton says he realizes it can be difficult for foremen to refuse an OSHA inspector's requests. "A federal agent has shown up on your job site, you're going to be respectful, and if he asks for something, it's in our nature to say, 'OK,'" he says. "What I'm trying to train guys is, OK, we're going to be respectful, we're going to get them anything that the law requires, but we're also going to be advocates and defensive and think about the things they're asking us for."

9. Get clarification at the end

During the closing conference the inspector presents any issues he or she observed during the inspection to the company representative. OSHA has six months from the time of the inspection to issue citations. Shaffer tells his trainees the closing conference is their last opportunity to voice their concerns if they didn't agree with something the inspector noted was hazardous. "Or, 'You said that was a hazard; I just don't know how to fix it,'" he says. "That's your chance to ask those questions."

Shaffer says while it might be good to get clarification, it is also important not to get stuck on any one point so it doesn't sidetrack the process. "If it's an issue where you feel this way and they don't, don't belabor the point," he says. "You have one last chance to talk with them about it. If they're not into it, then that's fine. We'll fight that on another day."

If the inspector didn't see anything wrong, Shaffer says a closing conference is unnecessary. If there are going to be fines, the closing conference is when Shaffer expects foremen or other company representatives to make sure they have the information needed to handle citations. "What's the problem, what needs to be fixed, who do we send information to, get their email address," he says.

10. Review documents

before sending copies Shaffer trains company representatives to allow inspectors to look at documents in the company's safety manual during inspections, but if they want a copy of anything, to have that request go to the company's office. "There are things that we are obligated to show OSHA and give them copies of, and there's things we're not," he says. "I don't want my folks in the field making those decisions."

Shaffer says if the inspector asks to see the safety program, they may. However, if they ask for a copy of the safety program, Shaffer says he sends them a copy of the table of contents. "I know what I have to give them and I know what I don't have to, and I'd like to be the one making that decision," he says. "But if they're asking for something we're not obligated to give them, I'm not so sure we're going to send it to them. Depends on the circumstances, depends on who it is, depends on why they want it."

Companies have four hours to provide a copy of 300 logs and 301 documents to OSHA after they are requested, which usually occurs during the opening conference. The company representative should contact the company's office and the office should contact an attorney or other safety expert to review the documents before sending the copies, Tilton says. "If OSHA is able to locate an instance where you were not carrying out the policies that you keep, those are extra, citable offenses," he says.

Tilton says he understands it can be difficult for company representatives to not comply with inspectors' requests. "That's a tough deal, and I realize that," he says. "But my legal advice is I've seen more citations produced simply from a safety manual that wasn't properly reviewed than I would have liked to have seen. If we've got a chance to look at that manual and prevent another $5,000 citation, then let's do it."

Steve Yates is a construction health and safety technician and the founder and president of Naperville, Ill.-based Optimum Safety Management. Optimum Safety Management's services include OSHA inspection and compliance assistance, safety programs, safety training, mock OSHA inspections and incident response.
Steve Yates is a construction health and safety technician and the founder and president of Naperville, Ill.-based Optimum Safety Management. Optimum Safety Management's services include OSHA inspection and compliance assistance, safety programs, safety training, mock OSHA inspections and incident response.

 

Craig Shaffer is a certified safety professional and president of Dillsburg, Pa.-based SafetyWorks Inc. SafetyWorks' services include safety training, safety program management, consultation and seminars. SafetyWorks and the Metal Building Contractors and Erectors Association co-authored a job site safety handbook.

Craig Shaffer is a certified safety professional and president of Dillsburg, Pa.-based SafetyWorks Inc. SafetyWorks' services include safety training, safety program management, consultation and seminars. SafetyWorks and the Metal Building Contractors and Erectors Association co-authored a job site safety handbook.

 

Anthony Tilton is an attorney at Tampa, Fla.-based Trent Cotney P.A. His practice focuses on all aspects of construction law including OSHA defense, management and development of safety and health strategies for construction contractors and industrial facilities and litigation for citations involving catastrophic construction or industry related accidents.
Anthony Tilton is an attorney at Tampa, Fla.-based Trent Cotney P.A. His practice focuses on all aspects of construction law including OSHA defense, management and development of safety and health strategies for construction contractors and industrial facilities and litigation for citations involving catastrophic construction or industry related accidents.

 

Safety Information Resources

Metal Building Contractors and Erectors Association Jobsite Safety Handbook: www.mbcea.org/store/ safety-hand-books-english
Information about classes from OSHA trainers: www.osha.gov/doc/training.html
OSHA On-site Consultation Program: www.osha.gov/dcsp/smallbusiness/ consult.html
OSHA inspection fact sheet: www.osha.gov/OshDoc/data_General_ Facts/factsheet-inspections.pdf
OSHA document directory: www.osha.gov/pls/publications/ publication.html